March 12, 2011
Well, 2011 seems to be shaping up as the Year of Labor Law. If the state public union measures weren't enough, now football is officially on the ropes. In spite of predictions by many, including me, the NFL officially locked out the players on Saturday. Things seemed to come to a head after both sides were still far apart on how to divvy up the huge amount of money the league earns (this is the flip of what we're seeing in much of the economy, where troubled economics tend to weaken workers' resolve). The players demanded full, or near-full, financial information to back up the league's claims of financial difficulties in paying for the players' demands. The league provided some info, but not enough for the union. After further negotiations apparently failed to make progress, the players broke of mediated talks, and then the lockout occurred.
What happened next was entirely predictable: the players' union decertified and a little over a dozen superstars then filed antitrust suits. Given the treble damages in such suits, this will likely be a big concern for the NFL. The players are also seeking an injunction to stop the lockout, similar to what the baseball players successfully did before then District Court Judge Sotomayor. The judge likely to get this case, Judge Doty (Minn.) has ruled in favor of the players in a an earlier, related issue. It remains to be seen how he'll handle this one.
It could be a long year for NFL fans. Of course, if like me, you root for Washington, a suspension of play might be a gift.
March 11, 2011
Kramer on Of Meat and Manhood
Always the provocative one, Zach Kramer (Arizona State) has posted on SSRN his forthcoming piece in the Washington University Law Review: Of Meat and Manhood.
Here's the abstract:
Sex discrimination law is at a crossroads. While Title VII of the Civil Rights Act has done much to combat formal sex discrimination in employment, the gender-stereotyping theory of sex discrimination—perhaps the most transformative theory of sex discrimination—has been eroded in the courts by a problematic way of thinking about discrimination—the bootstrapping logic. The bootstrapping logic reasons that an employee cannot raise an actionable theory of sex discrimination to “bootstrap” protection for an unprotected trait. This Article uses the cultural relationship between meat-eating and stereotypical notions of masculinity to critique the bootstrapping logic. The centerpiece of this critique is a case-study of an ongoing lawsuit in which an employee has brought a discrimination claim against his former employer, alleging that the employer discriminated against him because he is vegetarian. By focusing on the male vegetarian case study—which involves allegations of vegetarian, sexual orientation, and gender-stereotyping discrimination—the Article argues that sex discrimination often manifests as other forms of bias. In the case of the male vegetarian, what may look like vegetarian or sexual orientation discrimination is really sex discrimination in the form of gender-stereotyping.
The premise of the article appears right to me - it does no good to limit consideration of certain forms (i.e., race, sex, etc.) of employment discrimination to only those instances that technically or formally fit into that category. Employment discrimination, in its various forms, is much more amorphous than that and not subject to easy categorization. Zach's approach to the topic in this context is very much welcomed and should be read by all who continue to consider the proper theoretical foundations for employment discrimination law in the United States.
Recently Published Scholarship
- Benjamin A. Lindy, The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment, 120 Yale L.J. 1130 (2011).
- MyLinda K. Sims & Richard A. Bales, Much Ado About Nothing: The Future of Manifest Disregard After Hall Street, 62 S. Carolina L. Rev. 407 (2010).
- Ashley Aunita Prebula Frazier, ERISA Subrogation and the Controversy over Sereboff: Silencing the Critics, the Divided Bench Is a Legitimate Standard, 45 Georgia L. Rev. 579 (2011).
March 10, 2011
Iqbal & Twombly Hit ERISA
The U.S. Department of Labor has just filed an amicus brief in the Sixth Circuit case of Pfeil v. State Street Bank & Trust. The case alleges that the fiduciary for two 401(k) pension plans breached its ERISA duties by investing in inappropriately risky stock. The trial court applied the heightened pleading of Iqbal and Twombly and held dismissed the case for failure to state a claim. The DOL's amicus brief is filed on behalf of plaintiffs and seeks reversal, arguing that the trial court's application of Iqbal and Twombly impairs a fundamental purpose of ERISA which is to provide "ready access to the Federal courts."
Hat tip: Jeana Lawson.
Stone: Arbitration is a "Stealth Counterrevolution"
Katherine Stone (UCLA) has just published her essay Signing Away Our Rights in the April 2011 issue of The American Prospect. She argues that arbitration "has become a stealth counterrevolution, denying rights for which consumers, workers, civil-rights advocates, feminists, and their legislative allies have fought for a century", and urges "consumer and worker groups to publicize the names of corporations that demand compulsory arbitration and class-action bans and to call upon the public to stop doing business with them." It's an essay worth reading.
As a follow-up to Jeff's post below, I've noticed the complete absence of any discussion about even the possibility of the Wisconsin public-sector workers going on strike. A one-day walkout by police and firefighters and garbage collectors and transportation workers and teachers would be a major show of force.
I understand that a strike would be unprotected and illegal (remember PATCO?), but it's unlikely the state is in a position to fire every public-sector worker in the state. I'm curious, then, why there has been no discussion of even the threat of a public-sector strike. Are the unions too weak to pull it off? Are they afraid of being fired? Are they still hoping for a political solution? Are they afraid of losing public support? Or have there been strike threats that I just haven't heard about?
Comments are welcome -- I'd love to (1) hear from folks closer to the action about why unions don't seem to be playing the threat-of-strike card, and (2) generate a discussion of the pros and cons of the Wisconsin unions playing that card now.
March 9, 2011
Wisconsin Public Union Legislative Battle Is Over
Not able to wait for the self-exiled Democratic senators to return to Wisconsin--which was looking to happen sooner rather than later--senate Republicans apparently dusted off their rulebooks and figured out how to pass the anti-public union measures without the Democrats. The Republicans removed any provisions related to appropriations from the bill, which also removed the 20-senator quorum requirement for such provisions. This occurred over objections from the Democratic Assembly leader that the state open meetings law had been violated. After that, the Senate (18-1) passed the bill. Next stop is the State Assembly and then Governor, both of which will no doubt approve the bill.
It's a little surprising it took them this long to figure out they could do this or, if they were aware of the option, finally use it. Given that it looked like the Democrats would come back fairly soon (although this wasn't certain), this move seems to open themselves up to more criticism. On the other hand, such moves are inside baseball and most of the public attention is focused on the end result more than how they got there. What remains to be seen is the aftermath to all this. Will more state limits of public collective bargaining become the norm? Will the recent events cause a backlash and help rejuvenate labor in some way? How will changes in the economy and the next election affect things? Only time will tell.
UPDATE: Nate Silver at FiveThirtyEight examines some of these questions in a recent post. It's good to see that he's on this issue because as more polling data becomes available, he'll be able to do more of the great statistical analysis that he's known for.
More On White House Telling NLRB Not To Comment On Budget
The Huffington Post has more on an earlier story we posted on, in which the NLRB had removed from their website a message stating how the Republicans proposed budget cuts to the agency would temporarily shut down the agency and seriously interfere with its ability to enforce the NLRA. According to The Huffington Post:
When House Republicans targeted the budget of the National Labor Relations Board last month, the agency shot back, warning that such cuts would force it to largely cease operations for an extended period of time, creating a backlog of thousands of cases.
It was one of the few counterattacks from the Obama administration, which was otherwise busy proposing its own cuts and endorsing the Republican call for slashing spending -- and it didn't last long. The White House demanded that the NLRB scrub the statement defending the agency from its website, an NLRB spokesperson told The Huffington Post. . . .
The Office of Management and Budget, an arm of the White House, reached out to the NLRB and told the agency to back off and take down the statement, according to the NLRB spokesperson. OMB spokeswoman Meg Reilly said it is the job of the White House to comment on legislation. "Administration positions on proposed legislation are provided by the White House," Reilly told HuffPost in a statement in response to the NLRB charge. . . . Both Reilly and the NLRB spokesperson said that the OMB had earlier sent around guidance to all agencies advising that they not comment, instead allowing the White House to speak for the entire administration.
Hat Tip: Patrick Kavanagh
Levit on Attorney Discrimination Suits and Happiness
Nancy Levit (Missouri-KC), has just posted on SSRN her article, "Lawyers Suing Law Firms: The Limits on Attorney Employment Discrimination Claims and the Prospects for Creating Happy Lawyers," which will appear in the University of Pittsburgh Law Review. The article adds to her research in this area--most notably her book with Douglas Linder, The Happy Lawyer. The article's abstract:
It is more than a mild irony that anti-discrimination law fails lawyers in particular. This article addresses doctrinal and pragmatic limits on employment discrimination lawsuits by lawyers against their law firms. It considers the failures of the Title VII template to remedy the sorts of discrimination and dissatisfactions lawyers face in the practice of law, and concludes that many of the things that make lawyers unhappy are simply not reachable through employment discrimination lawsuits. The latter portion of the article turns to the recently emerging science of happiness literature. It suggests that the interests of lawyers and their firms may actually be united—although for different reasons—in wanting to promote lawyer job satisfaction. Law firms are beginning to understand the economics of attorney satisfaction, that happier workers are more productive, innovative and engaged, and that happiness is contagious. The article calls for structural reforms within firms, in terms of feedback, mentoring, transparency, and re-examination of the up-or-out partnership model, that will promote the economic resilience of law firms as well as increase lawyer satisfaction.
Looks to be an interesting intersection of discrimination law and prodcutivity, etc. I'm just waiting for her to turn to the problem of The Happy Law Professor (although, as many of us know, that's not usually much of a problem).
Kennedy on benefits articles you need to read
Kathryn Kennedy (John Marshall, Chicago) has just published an article in Tax Notes entitled Employee Benefits Law Review Articles You Need to Read. You can find it at 130 Tax Notes 1198 (2011). In it she reviews ten articles based on the following criteria:
- the author must be a full-time law professor, or in the case of a coauthored piece, the first listed author must be a full-time law professor; alternatively, I considered articles of professors of law at universities;
- the article was published or expected to be published during 2010 or the academic 2009-2010 term; and
- the article must appear or be expected to appear in a student-edited law journal or student-edited law review affiliated with an American Bar Association accredited law school; alternatively, I considered articles in professional journals and law reviews that are affiliated with accredited universities.
The ten articles include one by our own Paul Secunda (Marquette), and also articles by Eric Chason (William and Mary), Lawrence Frolik (Pittsburgh), Eleanor Kinney (Indiana, Indianapolis), Brendan Maher (Oklahoma City) and Peter Stris (VAP at Whittier), Wendy Mariner (Boston U.), Matthew Melone (Lehigh U., College of Business and Econ.), Amy Monahan (Minnesota), Randall Thomas (Vanderbilt) Erin O'Hara (Vanderbilt) and Kenneth Martin (Finance Prof.. N.M. State College of Business), and David Walker (Boston U.). It's a great collection with excellent summaries by Professor Kennedy.
March 8, 2011
Estreicher and Kramer on Pre-Recognition Framework Agreements
Sam Estreicher (NYU) and Andrew Kramer (Jones Day) have published a piece in the New York Law Journal (or Download Framework Article) looking at the NLRB's recent Dana Corp. decision (no, not that Dana Corp., this one). In this decision, the Board (2-1) found no ULP resulted from a union and employer reaching a framework agreement over a possible CBA before the union gained majority status. The agreement specified a range for the CBA terms, health care costs, productivity standards, and many others. The majority concluded that this wasn't an 8(a)(2) problem because the employer said it would not recognize the union without majority support and the agreement only involved a general framework--not a complete CBA. In short, the agreement did not make the union a fait accompli.
Estreicher and Kramer applaud this decision, arguing that it gives unions and employers the increased flexibility needed in the current economy. They also suggest that the Board require that employees be given access to the framework agreement before voting (or signing cards) on union representation.
Check it out.
Eyer on That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law
Katie R. Eyer (Penn, Alice Paul Center for Research on Women, Gender and Sexuality) has posted on SSRN her forthcoming piece in the Minnesota Law Review: That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law.
Here is the abstract:
Empirical studies have shown that discrimination litigants face difficult odds. Indeed, less than 5% of all discrimination plaintiffs achieve any form of litigated relief. These odds are far worse than those faced by virtually any other category of federal litigants and extend to every conceivable procedural juncture, from motions to dismiss, to post-verdict appeals. So what explains these results?
Surprisingly, there have been few robust attempts to answer this core question. Thus, while we have extensive data demonstrating that discrimination litigants fare poorly in the courts, we know little about why. This Article – drawing on a heretofore unexplored area of the psychological literature (regarding how and why people make attributions to discrimination) – attempts to fill this gap by developing a theoretical framework for understanding the difficulties that discrimination litigants face.
What this framework (and the underlying psychological literature) suggests is that the difficulties that discrimination litigants face are likely to be deeply intractable. Indeed, it appears that the difficulties that discrimination litigants face are founded in fundamental American background beliefs regarding meritocracy and discrimination; beliefs that are widely shared and generally impervious to change.
These findings have profound implications for contemporary recommendations for anti-discrimination reform. Most notably, they suggest a need to look for alternatives that will be less susceptible to the negative effects of American background beliefs, including alternatives that may be outside the scope of traditional anti-discrimination law (for example, just cause claims or FMLA-style laws). This Article thus concludes by providing a preliminary discussion of the potential benefits and drawbacks of such “extra-discrimination remedies.”
This is a very interesting paper for anyone, like myself, who believes that psychological insights are the key to understanding how certain types of labor and employment law claims fair in United State courts. I also very much like the effort to consider ways of counteracting the underlying psychology of the situation.
March 6, 2011
Hirsch Heading to Chapel Hill
It gives me great honor, nay joy, to announce that my co-blogger, co-author, and all-around-good-guy Jeff Hirsch will be lateralling to the University of North Carolina-Chapel Hill starting this Fall. In celebration of getting Jeff to come to UNC, the men's basketball team beat Duke last night.
Jeff joined the University of Tennessee law faculty in August 2004 after working in the Appellate Court Branch of the National Labor Relations Board in Washington, D.C. and serving as a judicial clerk for the Honorable Haldane R. Mayer on the U.S. Court of Appeals for the Federal Circuit and the Honorable Robert R. Beezer on the U.S. Court of Appeals for the Ninth Circuit.
His scholarship has been published in numerous law journals, including those at Boston College, Florida State, Fordham, George Washington, and Maryland; his essays have been published in the online journals at Virginia and Yale. He also is the co-author of two books with moi, one on employment law and the other on employment discrimination law. A third one, on labor law, is due out next year.
Jeff is the immediate past Chair of the Southeastern Association of Law Schools’ New Scholars Committee. He is also a Research Fellow and Recent Graduate Advisor at the New York University Center for Labor and Employment Law, and is admitted to the United States Court of Appeals for the Second, Third, Fourth Fifth, Sixth, Eighth, Ninth, D.C., and Federal Circuits.
Congrats, Jeff. UNC is lucky to have you.
A Local School Board in Wisconsin Takes a Stand in Favor of Public Sector Bargaining
Thanks to the good folks over at the Maple Dale-Indian Hill School District in suburban Milwuakee for allowing me to share with the readers of this blog a letter concerning Governor Walker's proposed Budget Repair Bill they sent out to their school district this past Friday. As most are aware at this point, the proposed legislation seeks to eliminate most collective bargaining right for most public employees in the State of Wisconsin.
Some highlights from the letter:
In our case, collective bargaining has worked. Our District is a partnership between all members of our school community - administrators, teachers, support staff, parents, volunteers, and residents at large - and this is one of the key reasons for our many successes. Make no mistake, there is always room to improve the collective bargaining process, but the financial issues we are facing at the state level are structural in nature - going back to Governor Walker's and Senator Darling's days in the State Assembly (and likely before). Simply put, these issues were not caused by the collective bargaining process and fixing them goes way beyond the collective bargaining process.
Nicely said. Hope the Governor gets a copy of this letter.
Recently Published Scholarship: EREPJ
Employee Rights and Employment Policy Journal
Volume 14, Number 2, 2010
- Melissa Hart, Business-Like: The Supreme Court's 2009-2010 Labor and Employment Decisions, p. 207.
- Paul M. Secunda, Foreword: The Future of OSHA Reform, p. 231.
- John Howard, OSHA Standards-Setting: Past Glory, Present Reality and Future Hope, p. 237.
- Jayesh M. Rathod, Beyond the 'Chilling Effect': Immigrant Worker Behavior and the Regulation of Occupational Safety & Health, p. 267.
- Susan Bisom-Rapp, Puzzling Evidence from a Troubled Time: Rethinking the State Promotion of Safe Work During the Bush Administration, p. 295.
- Jarod S. Gonzalez, A Pot of Gold at the End of the Rainbow: An Economic Incentives-Based Approach to OSHA Whistleblowing, p. 325.
- Scott A. Moss, Sandra F. Sperino, Robin R. Runge, Charles A. Sullivan, Reviving Employee Rights? Recent and Upcoming Employment Discrimination Legislation: Proceedings of the 2010 Annual Meeting of the Associtaion of American Law Schools Section on Employment Law, p. 355.
Recently Published Scholarship: Hofstra LELJ
- Wilma B. Liebman, Labor Law During Hard Times: Challenges on the 75th Anniversary of the National Labor Relations Act, p. 1
- Hina B. Shah, Broadening Low-Wage Workers' Access to Justice: Guaranteeing Unpaid Wages in Targeted Industries, p. 9.
- Daniel P. O'Gorman, Solomon and Strikes: Labor Activity, the Contract Doctrine of Impossibility or Impracticability of Performance, and Federal Labor Policy, p. 47.
- Matthew W. Green, Jr., Express Yourself: Stiking a Balance Between Silence and Active, Purposive Opposition Under Title VII's Anti-Retaliation Provision, p. 107.
- Celeste J. Mattina, The NLRB's Deferral Policy Under Fire: The D.C. Circuit's Criticism and the Future of the Deferral Policy, p. 155.
- J. Michael Lightner, Winds of Change are Blowing from the Obama NLRB, p. 163.
- Alvin P. Blyer, Some Current Thinking at the Board from Brooklyn and Beyond, p. 175.
- Jaime Rigel and Alexi T. Poulianos, Take Your Paws Off Me: An Argument in Favor of Revising the Occupational Safety and Health Act and the Protecting America's Workers Act, p. 183.