December 17, 2010
Kentucky Seeks Labor Law Visitor
Alvin Goldman (emeritus - Kentucky) sends word of an endowed Visiting Professorship in Labor Law available next year at UK. Here are the details:
The University of Kentucky College of Law seeks applications and nominations for the James and Mary Lassiter Endowed Distinguished Visiting Professor for one semester of the 2011-12 academic year. The Lassiter Distinguished Visiting Professor recognizes a faculty member who has demonstrated outstanding achievement in his or her field and is not limited by subject matter. Applicants or nominees should have a record of scholarly excellence and of strong classroom teaching. The Lassiter Distinguished Visitor will teach one or two courses and will be encouraged to present workshops on research and participate broadly in the intellectual life of the College of Law.
Review of candidates will begin upon receipt. Expressions of interest and nominations should be submitted no later than January 22, 2011 and should be directed to Mary J. Davis, Associate Dean for Academic Affairs and Chair of Lassiter Committee.
Dynamics of Public Sector Labor Bargaining
Part of the difficulty in public sector labour relations is the apparently inevitable confrontation between government and civil service unions. This idea is sketched out here with particular attention to the inherently political nature of public sector education in England and Canada. Of the many characteristics of public sector labour relations, governments’ dual role as employer and legislator remains the most distinctive. It provides an advantage which governing parties in both jurisdictions have used to their singular benefit. This power is also the source of limitations within the public sector labour relations framework. With little recourse via the law (grievances, legislation), teachers’ unions have taken their message to the public in an attempt to improve their leverage in negotiations with government. Developing in the late 20th century, public campaigns have been a favoured means for highlighting issues which fit under the broad catchphrase of protecting quality in public education. Conversely, government may also implement its own rebuttal campaign based on the need for financial restraint. As part of this contest, both sides invoke the threat of public outcry as a force which each claims it may muster, for the purpose of maximising its bargaining position. This is the framework of contemporary public sector education collective negotiations. In effect, modern day public sector education bargaining has become the means of retrenchment: government, in a centralised funding arrangement such as that in England and Ontario, allocates money and dictates the terms of employment.
Estreicher's Strategy for Labor Revisted
Sam Estreicher (NYU) has just posted on SSRN his piece "Strategy for Labor Revisited." As the name suggests, this is a new look at a similar piece from about ten years ago, "Strategy for Labor." Both are written as conversations among different players in the labor movement, and the "revisited" piece raises some really interesting possible strategies on issues such as the low union density rate, trade, contingent work, card-check certification, and non-labor employment disputes. The abstract:
Editor's Note: What follows is an unofficial transcript of an off-the-record conversation among three of the labor movement's leading strategists. The meeting was convened by C, or "cooperationist," who had been for over ten years the president of a local union, part of a major industrial union, representing 3,000 employees who had been hired to staff a new manufacturing plant in a Southern town ("Newplant"). Newplant had been widely touted as a breakthrough in U.S. labor-management relations because it was consciously designed to promote greater participation of production and maintenance workers in business decisions. In bitterly contested local elections last year, C was voted out of office and now serves in a staff capacity at the AFL-CI0. A, or "adversarialist," a longstanding friend of C, is the research director of another industrial union. A was very active in the Students for A Democratic Society in the 1960s, and after graduating from Antioch College began his career as a labor organizer, working for a succession of unions that had been active in the McGovern-Kucinich wing of the Democratic Party. S, or "stay the course," is the highly respected chief of staff for a national union representing government workers. Section headings and citations are supplied by the editor and do not appear in the original transcript.
Check it out.
December 15, 2010
Whistleblower Protection Enhancement Act
The Senate recently passed the Whistleblower Protection Enhancement Act by unanimous consent. The bill is no being referred to the House, which backers hope will quickly pass the measure before the end of the year. Among many other things, the WPEA would:
- expand the definition of a protected disclosure
- allow rebuttal of the presumption of a public servant's good performance with substantial evidence (this would reverse the Federal Circuit's rule that this presumption stands absent “irrefragable proof to the contrary”)
- allows some jury trials
- gives the MSPB power to award attorney's fees and compensatory damages
- strips the Federal Circuit of exclusive jurisdiction for five years (see "irrefragable proof" above)
- gives protection to TSA and intelligence employees
- gives equal protection to disclosures related to censoring of scientific information
I have a personal interest in the measures directed at the Federal Circuit, as I was involved with the writing of the case that established the irrefragable standard (Lachance v. White) when I clerked on the court. I'm not going to say what my personal views were, but it's been very interesting to watch the reactions to that case over the years, culminating in this attempt to gut it.
Is Murder "Good Cause" for Discharge?
Roger Kearney murdered his married lover after she started pressuring him to leave his partner for her. He was convicted and got 15 years. Kearney's employer, the Royal Mail (he was a postal worker), fired him. Now Kearney is bringing an Employment Tribunal claim for unfair dismissal. A spokesperson for Royal Mail indicates that "Royal Mail will defend its position vigorously at this tribunal."
As PJH Law points out, even if murder does not constitute good cause, perhaps absenteeism is.
For the complete story (with photos), see BBC News.
A Canadian GINA?
Trudo Lemmens (Toronto), Daryl Pullman (Memorial - Newfoundland), & Rebecca Rodal (Toronto) have just posted on SSRN their article Revisiting Genetic Discrimination Issues in 2010: Policy Options for Canada. Here's the abstract:
Since the advent of the Human Genome Project, concerns have been raised about the potential inappropriate collection, storage and use of genetic information, particularly in the insurance and employment sectors. As genetic testing technologies become more readily available and affordable, their predictive capacity more accurate, marketing strategies more sophisticated, and access to online genetic information more pervasive, the incentives for third parties to mine and exploit this information will increase. The Council of Europe’s Convention on Human Rights and Biomedicine, which explicitly prohibits genetic discrimination, prompted legislative initiatives in many countries. The U.S. has responded with state legislation and, federally, with the much-heralded but controversial Genetic Information Non-Discrimination Act (GINA) of 2008. GINA has created more recent pressure for a legislative response in Canada and has inspired the introduction of a federal private member’s bill on genetic discrimination in 2010. Given recent developments, it may be time for Canada to revisit this policy issue. This Policy Brief explores three possible options (other than status quo) for addressing potential issues of genetic discrimination: 1) strengthened use of existing human rights and privacy regimes; 2) a new regulatory framework for genetic testing; and 3) sector-specific solutions for insurance.
December 14, 2010
Reversing Field Book
West Virginia University Press has just published the book, Reversing Field: Examining Commercialization, Labor, Gender, and Race in 21st Century Sports Law. The book is based on a great conference that WVU law put on (andre cummings and Anne Lofaso were the major forces behind both the conference and the book) and includes a wide list of contributors such as Bill Gould (Stanford) and Dennis Walsh (FLRA, formerly NLRB), who talked about the baseball strike of 1994-1995. I participated in their session and their insights on this strike was fascinating. The other issues discussed in the book are wonderful as well, as the description indicates:
Reversing Field invites students, professionals, and enthusiasts of sport – whether law, management and marketing, or the game itself – to explore the legal issues and regulations surrounding collegiate and professional athletics in the United States. This theoretical and methodological interrogation of sports law openly addresses race, labor, gender, and the commercialization of sports, while offering solutions to the disruptions that threaten its very foundation during an era of increased media scrutiny and consumerism. In over thirty chapters, academics, practitioners, and critics vigorously confront and debate matters such as the Arms Race, gender bias, racism, the Rooney Rule, and steroid use, offering new thought and resolution to the vexing legal issues that confront sports in the 21st century.
Check it out!
Duty of Loyalty vs. Opposing Discrimination
The New Jersey Supreme Court, which has its own difficulties on other counts, just issued an opinion notable for its pained analysis of the intersection of an employee's duty of loyalty with her right to oppose discrimination. Quinlan v. Curtiss-Wright Corp, decided under the state's LAD, confronts a common scenario -- when an employee, suspecting discrimination, copies her employers documents and hands them over to her attorney for use in her case. The major difference between this and other cases was the wholesale nature of the copying -- plaintiff was the Executive Director of Human Resources and compiled 1800+ pages of confidential documents, plus one more. Ironically, it was the one more that generated the most problems,
The 1800 pages were copied and provided by plaintiff to her attorney before she filed suit, and plaintiff''s attorney reported that fact to defendant during discovery. Thereafter, Quinlan copied a performance evaluation of her main comparator -- which she also provided her attorney, who promptly sprung it on the comparator at deposition. Defendant cried foul, and fired plaintiff for the "unauthorized taking of confidential or privileged information [which] constitutes a theft of Company property." Plaintiff promptly amended her complaint to state a claim for retaliation.
From the 30,000 foot level, the controversy pits two principles against one another: plaintiff clearly violated a duty of loyalty to her employer (she had in fact signed an agreement to maintain company documents in confidence, but such a duty would surely be implied from her position). On the other hand, the statutory antiretaliation provision would seem to immunize some such conduct -- after all, a promise extracted by employers from all employees not to discuss any of their work with anyone outside the firm might be perfectly valid under normal contract principles but would have to yield to the necessities of the antidiscrimination laws. And, at the 30,000 foot level, maybe there's not much disagreement on this.
Closer to the ground, however, the situation quickly dissolved into chaos in Quinlan. The trial court ruled that the taking of the 1800 documents wasn't protected conduct, nor was the taking of the performance evaluation. Plaintiff had not been fired for the former act, and, if she had been fired for the latter act, it would not be actionable. On the other hand, if she was fired for her attorney's use of the document, she stated a claim. The distinction got plaintiff to trial where, counting punitive damages, she obtained $10 million judgment. The Appellate Division reversed, however, finding no distinction between the taking and the using of documents.
The New Jersey Supreme Court, in turn, reinstated the plaintiff's verdict. Needless to say, the decision was greeted with commentary critiquing the court for approval of theft of company property. But the decision was scarely a slam dunk for employees seeking to document potential discrimination claims since the court adopted a multi-factor test for determining whether such conduct is protected:
- whether the employee came upon the documents "innocently"
- whether the employee went beyond sharing them with her attorney to evaluate her claim
- the nature of the documents, including the strength of the employer's interest in confidentiality
- whether the disclosure was disruptive
- the strength of the employee's reason for copying the document (as opposed, for example, to identifying it for a later document request during discovery).
As with most complicated tests, this one leaves both employers and employees in a pretty uncertain position. While there may be clear cases (on the employee's side providing one's attorney with a copy to evaluate the case when there is a reasonable fear the document may be destroyed; on the employer's side, firing an employee for breaking into a file cabinet to obtain a document that is the employee then distributes throughout the company), in most cases both sides will have to act in the shadow of uncertainty. Indeed, it might well be that very uncertainty that led Curtiss-Wright not to fire plaintiff immediately upon learning of her copying of the first 1800 documents.
I couldn't help but wonder whether the court (and federal courts before it) made the whole question unnecessarily complicated. Why not a simple rule that priviliges copying such information for the sole purpose of sharing it with one's attorney when the information is discoverable in any event? While the notion of discoverable information has its own complexities, it is much more likely to be yield predictable results than application of the Quinlan six-factor test. Such an approach would not resolve all questions of employee use of confidential documents, but it would provide a brighter line as to the situation where the use of such information is most desirable.
One objection to this is that it would deprive the defendant of a right to a judicial determination of discoverability in advance and also deny it the opportunity for a protective order, But as framed, the right would be limited to those documents that could be obtained anyway in discovery and shared only with those clearly entitled to read them under normal discovery rules. An employee who went beyond this use would be subjecting herself to the uncertainties of the Quinlan factors.
A gut-level objection to this seems to be the self-help nature of the remedy. Indeed, this is the thrust of the dissent of Justice Albin: the majority "sends the wrong message to the bar: lawyers should not signal to a client that stealing documents is an acceptable substitute for the discovery process." But, why not? And Albin's argument misses the point that in many, maybe most, cases, the will be no lawsuit filed and therefore no discovery. As they say in basketball, no harm, no foul. If the information would be obtainable by the plaintiff's lawyer in discovery, why should the plaintiff be subject to discharge for using it to assess or prepare a case?
Recently Published Scholarship
- Joseph A. Seiner & Benjamin N. Gutman, Does Ricci Herald a New Disparate Impact?, 90 Boston U. L. Rev. 2181 (2010).
- Patrick S. Shin, Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law, 62 Hastings L.J. 67 (2010).
- Eang L. Ngov, War and Peace Between Title VII's Disparate Impact Provision and the Equal Protection Clause: Battling for a Compelling Interest, 42 Loyola U. Chicago L.J. 1 (2010).
- Erin M. Snider, The FLSA Antiretaliation Provision: Defining the Outer Contours of What Constitutes an Employee Complaint, 96 Iowa L. Rev. 385 (2010).
Philip Dray, There is Power in a Union: The Epic Story of Labor in America (Random House 2010), available at Amazon. Here are notes from the publisher:
From the textile mills of Lowell, Massachusetts, the first real factories in America, to the triumph of unions in the twentieth century and their waning influence today, the contest between labor and capital for their share of American bounty has shaped our national experience. Philip Dray’s ambition is to show us the vital accomplishments of organized labor in that time and illuminate its central role in our social, political, economic, and cultural evolution. There Is Power in a Union is an epic, character-driven narrative that locates this struggle for security and dignity in all its various settings: on picket lines and in union halls, jails, assembly lines, corporate boardrooms, the courts, the halls of Congress, and the White House. The author demonstrates, viscerally and dramatically, the urgency of the fight for fairness and economic democracy—a struggle that remains especially urgent today, when ordinary Americans are so anxious and beset by economic woes.
Philip Dray is the author of At the Hands of Persons Unknown: The Lynching of Black America, which won the Robert F. Kennedy Book Award and made him a Pulitzer Prize finalist, and Stealing God’s Thunder: Benjamin Franklin’s Lightning Rod and the Invention of America, and the coauthor of the New York Times Notable Book We Are Not Afraid: The Story of Goodman, Schwerner, and Chaney, and the Civil Rights Campaign for Mississippi. He lives in Brooklyn.
Hat tip: Carol Furnish.
December 13, 2010
Agencies Anticipate Being Overwhelmed with Whistleblower Complaints
The Dodd-Frank law dangles a pile of money in front of whistleblowers who tip off the Securities and Exchange Commission and Commodity Futures Trading Commission to financial fraud. But collecting the bounty could be a challenge.
Both agencies are likely to get inundated with tips, which can result in rewards of 10% to 30% of fines and settlements extracted in enforcement actions triggered by a whistleblower claim. Claims began trickling in shortly after the financial-overhaul law was passed in July, and the SEC forecasts it will get 30,000 tips a year. Officials expect about half of the tips to lead to formal money claims.
For the complete article, see Jean Eaglesham & Ashby Jones, Whistleblower Bounties Pose Challenges.
Conference on Ownership of Employee Inventions
Monash University (Australia) will be hosting the conference Business Innovation: A Legal Balancing Act, May 2-4, 2011 at its branch campus in Prato, Tuscany, Italy. Here's the conference description:
This conference was inspired by the issues that arose in recent litigation in the Australian Federal Court in University of Western Australia v Gray regarding ownership of employee inventions in a university. The themes for this international conference are the analysis of the topical issue of protecting business research and development in the context of several areas of law - IP, Labour and Employment, Competition and Corporate Laws. The sessions will evaluate the impact of each of these areas on this issue using discipline specific perspectives. They will also explore the extent to which such perspectives are influenced by the others and whether a more harmonized approach is necessary to provide appropriate protection. Approaches of the common law and civil jurisdictions, particularly the EU, will be used to inform and provide guidance to the analysis of emerging issues in this field. The legal issues will be explored from theoretical and applied frameworks.
We anticipate this conference will attract legal practitioners, academics, postgraduate students, policy makers and those responsible for business innovation in both public and private research institutes.