Saturday, March 19, 2011
Congratulation to the teams from NKU-Chase and Mississippi College, who will meet in the final round of the Robert F. Wagner National Labor and Employment Law Moot Court Competition at New York Law School. The round will be streamed live at 2:00pm tomorrow (Sunday) at the link above.
ABA Journal of Labor & Employment Law
Volume 26, Number 1 (fall 2010)
- Carla J. Rozycki & Emma J. Sullivan, Employees Bringing Disparate-Impact Claims Under the ADEA Continue to Face an Uphill Battle Despite the Supreme Court's Decisions in Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratory, p. 1.
- G. Roger King, National Labor Relations Board: Case Law Development Comparisons Between the Clinton and Bush II Boards, p. 23.Debo Sarkar and Amanda Dealy Haverstick, "The Preventative Pay Equity Audit: Guidance for Modeling the Regression Analysis," p. 61.
- Donald C. Dowling Jr., U.S.-Based Multinational Employers and the Social Contract Outside the United States, p. 77.
- Justin McDevitt, Compromise is Complicity: Why There is No Middle Road in the Struggle to Protect Day Laborers in the United States, p. 101.
- Jeffrey E. Dilger, Pay No Attention to the Man Behind the Curtain: Control as a Nonfactor in Employee Status Determination Under FedEx Home Delivery v. NLRB, p. 123.
Friday, March 18, 2011
The New York Times, along with many other publications, reports today that the Wisconsin anti-union law that was signed by Governor Scott Walker last week was temporarily enjoined by a state court judge in Madison. The judge found that the Republicans' and Walker's action in getting the law signed violated the state's open meeting laws:
A judge issued a temporary restraining order on Friday that prevents Wisconsin’s new law cutting collective bargaining rights for public workers from taking effect, at least for now.
The decision, issued by Judge Maryann Sumi of the Dane County Circuit Court, temporarily bars Wisconsin’s secretary of state from publishing the controversial law, one of the procedural requirements for it to come into effect in the state. Publication had been expected late next week, but Judge Sumi’s ruling delays that until at least March 29, when she plans to hold a full hearing on a lawsuit that questions the validity of the collective bargaining law based on the speedy manner in which it was carried out earlier this month.
An appeal is possible even before then.
An appeal is more than possible because Wisconsin Attorney General Van Hollen is a Republican and he has already made his intentons clear. Of course, this is also just the beginning of legal challenges to this union busting bill. So far there have only been procedural challenges, but many substantive challenges are also likely to be filed based on federal and state constitutional and statutory grounds.
All of this also takes place in the context of a number of State Senators being subject to recall petitions and a pivotal Wisconsin Supreme Court election due to take place April 5th.
In short, we live in interesting times here in Wisconsin and things are just likely to get more interesting (and I would daresay difficult for Wisconsin Republicans) in the days, weeks, and months to come.
Hat Tip: Lise Gelernter
Employment Policy Research Network on Empirical Evidence and Policy Implications from Research on Public-Sector Unionism and Collective Bargaining
Thanks to Harris Freeman (Western New England) for brining to my attention this research from the Employment Policy Research Network: Empirical Evidence and Policy Implications from Research on Public-Sector Unionism and Collective Bargaining.
In response to public-sector collective-bargaining conflict in Wisconsin and other states, Employment Policy Researcher Network researchers wrote a white paper, "Getting it Right: Empirical Evidence and Policy Implications from Research on Public-Sector Unionism and Collective Bargaining."
The lead writer was UCLA Anderson School of Management Professor David Lewin, who brought long and deep experience in landmark public-sector collective-bargaining agreements. MIT Sloan School of Management Professor Thomas Kochan was the other main writer. Also contributing to the writing and editing were University of Illinois' Joel Cutcher-Gershenfeld, New School for Social Research's Teresa Ghilarducci, Cornell's Harry Katz, Rutgers' Jeffrey Keefe, UCLA's Daniel J.B. Mitchell, University of Illinois' Craig Olson, Rutgers' Saul Rubinstein and University of Massachusetts, Boston's Christian Weller.
Truly a must-read for those following the unfolding events involving the attack on public sector unionism accross the country.
Attendees of the Fifth Annual Colloquium on Labor and Employment Scholarship in St. Louis last fall might recall my lunchtime presentation on the demographics of (and demographic changes in) teachers of law school labor / employment law. I received a lot of terrific feedback at the Colloquium, and have incorporated many of the suggestions into the final article.
The article, A Data-Driven Snapshot of Labor and Employment Law Professors, is now available for downloading on SSRN. Some of the findings surprised me. Here's a summary of the findings:
- The teaching of Labor Law is declining and the teaching of Employment Law is rising.
- Men dominate the teaching of Labor Law, but women have mostly narrowed the gap in Employment Law.
- The other courses taught by Labor/Employment Law faculty members are highly sex segregated. For example, Employment Law faculty members who also teach Family Law or Property are overwhelmingly likely to be women, and Employment Law faculty members who also teach Constitutional Law, Civil Procedure, or Contracts are overwhelmingly likely to be men.
- Both Labor and Employment Law faculty members are more prevalent in top-tier law schools than in bottom-tier law schools; in the Great Lakes, Northeast, and Midsouth regions than in other regions of the country; and in large metropolitan areas than in rural areas.
Thursday, March 17, 2011
Good luck to all competing in this weekend's 35th Annual Robert F. Wagner Labor and Employment Law Competition!
I seem to be in the habit lately of looking for the downside of generally good news. This time it's Staub v. Proctor Hospital which has generally been viewed as plaintiff-friendly. I don't doubt that's true, but think there's another side to the opinion. Which there usually is when Justice Scalia is the author!
Although Staubitself involved the USERRA, it was obviously written with Title VII in mind, and the scenario in that context can be reduced to simple formulation. The employing entitly (E) has three relevant actors: A (plaintiff), B (A's supervisor or co-worker) and C, the person whom A has delegated decision making power.
B then makes a negative report to C about A, and the report would not have been made but for A's race. (I use "report" to include a negative evaluation if B is A's supervisor or just ratting out A's supposed misconduct, which could occur whether B is a supervisor or just a coworker). C, acting on B's report, takes an adverse employment action against A.. C has no discriminatory intent at all, and might not even know A's race.
From a but-for causation perspective, B has caused the adverse employment action. And that is true regardless of whether C conducts what might be called an "independent investigation." After all, even if C confirms everything that B said, the issue might not have come to C's attention but for B's report.
What does Staub say about this scenario.
First, nothing if B is a co-worker -- the Court doesn't reach that question. See note 4.
Second, even as to supervisors, the report must be either within the scope of employment or imputed to E under normal agency principles, see note 4 again, although this would seem to usually be true in these situations.
Third, Staub clearly rejects E's automatic liability in this situation -- but-for causation is not enough.
Fourth, B, who acted from discriminatory motives, must have intended the adverse employment action that follows from his report. The Court italicized "intended." This strongly suggests that showing a wrongfully motivated negative evaluation by B is not enough for liability. If B merely intended to cause spoil A's day by a negative evaluation, but C acted on the evaluation a year or two later when layoffs were imminent, no liability.
Fifth, even proof that B intended his report to get A fired and that A was in fact fired isn't enough. B's report has to be the proximate cause. This is where the Scalia opinion seems to open up the possibility of Staub being not so plaintiff-friendly after all.
Sixth, along these lines, the last sentence of footnote 4 which the question of whether the employer would have an affirmative defense had the plaintiff not invoked the defendant's internal grievance process. The potential for pouring plantiffs out of court for failure to pursue internal remedies seems obvious (one might wonder whether arbitration counts). But there might be a risk-management lesson here for employer's attorneys, too: have a generalized grievance process for discharges.
Eighth, there's still the question of whether C can purge E of the taint of B's discrimatory motivation but still fire A. This takes us to the "independent investigation" that several circuits approved of as cleansing a decision of any taint. Alito's concurrence would formally adopt such an approach, but Scalia's majority opinion does not -- at least explicitly. But his notion of proximate cause seems to entail some version of it. Thus, the Court writes "we do not think that the ultimate decisionmaker's exercise of judgment automaticallyrenders the link to [B's] bias 'remote' or 'purely contingent.'" (my italics). That suggests that C's "exercise of judgment" sometimes breaks the link.
And the opinion then goes on: "if the employer's investigation results in an adverse action for reasons unrelated to [B''s[ original biased action . . . then the employer will not be liable." In other words (I think), if the investigation is truly independent, it will cut the chain of causation. By truly independent, Scalia means when "the adverse action was, apart from the supervisor's recommendation" entirely justified.
But, for me, this passage raises a troubling question. Suppose A's supervisor, B, reports to C that A is repeatedly late and does so from a discriminatory motivation hoping that his report will result in A being fired. C, suspecting that B is acting from animus (or maybe just out of an abundance of caution), reviews A's attendance records and determines that A was in fact repeatedly late. C fires A.
This would seem to satisfy the Court as to E's not being responsible: B's report was the cause-in-fact but not the proximate cause of the discharge since C's entirely independent investigation broke the (proximately) causal chain.
Or did it? What if D, a white employee, was as late as A and is not discharged? In other words, to avoid liability for B's conduct does C have to not only determine that A acted as B reported but also that there are no better-treated D's around? A strong argument can be made that the answer is yes -- C should determine not merely the facts (was A late?) but whether those facts warranted a discharge in terms of the company''s actual practices (would A's lateness have resulted in his discharge were he white?).
But I may be wrong. Actually, I may be wrong on a lot of this. I thought I'd seen the last of proximate cause when I finished Torts in 1966 (not having covered myself with glory in that course) and I resent the Court requiring me to revisit that concept at this stage in my career!
P.S. I have more thoughts on this, including the tension between the neat "we therefore hold" paragraph and other parts of the opinion that are in tension with this, but I'll save them for another forum.
P.P.S. Tip o'the hat to John Jacobi and Ed Hartnett who shared thoughts about this with me but haven't approved this post.
Rep. Phil Roe, a Republican from my state of Tennessee, has just introduced the Secret Ballot Protection Act (his statement is here). This bill, which is similar to others we saw in the lead-up to the EFCA push would, among things, amend Section 8(a)(2) of the NLRA to prohibit recognizing or bargaining with a union that was not chosen by a secret ballot election, and amend Section 9(a) by stating that a union will be the exclusive representative if "designated or selected" by a secret ballot.
This measure, of course, has less of a chance than EFCA of passing in the current Congress. But it represents yet another labor law battle and suggests that even more are to come.
Hat Tip: Hank Leland
Congratulations to Mark Weber (DePaul), becoming quite the writing machine, for publication of his new piece in the Utah Law Review: The Common Law of Disability Discrimination.
Here is the abstract:
In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination.
On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked. Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases.
Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.
I had the pleasure of reading this article in its earlier form and it is a must read for anyone interested in finding additional rights in the law for those with disabilities, both within and outside of the workplace. Mark writes beuatifully and he explains the concepts so well and effortlessly.
Check it out!
Monday, March 14, 2011
Mitch Rubinstein over at Adjunct Prof Blog reports that NLRB Acting General Counsel Lafe Solomon has just announced guidelines to help employees who are illegally discharged receive something closer to full compensation in backpay awards:
Mr. Solomon issued a memo a memo outlining new methods for calculating backpay that includes daily compounded interest as recently ordered by the Board, and compensates for such things as expenses to search for employment and tax penalties for lump sum payments.
In a second memo, he urged reconsideration of two 2007 Board decisions that require illegally discharged employees to start looking for a new job within two weeks of being fired, and shifted the burden from the wrongdoer to the General Counsel to prove that they have diligently pursued work throughout the backpay period. Earnings from these other jobs are deducted from backpay awards.
- Trina Jones, Intra-Group Preferencing: Proving Skin Color and Identity Performance Discrimination, 34 NYU Rev. L. & Soc. Change 657 (2010).
- Natalie Bucciarelli Pedersen, A Legal Framework for Uncovering Implicit Bias, 79 U. Cin. L. Rev. 97 (2010).
- James M. Patrick, Preserving the Right to a Jury Trial in Public Employee Free Speech Litigation: The Protected Status of Speech Must Be Labeled a Mixed Question of Law and Fact, 79 U. Cin. L. Rev. 375 (2010).
- William C. Sung, Taking the Fight Back to Title VII: A Case for Redefining "Because of Sex" to Include Gender Stereotypes, Sexual Orientation, and Gender Identity, 84 S. Cal. L. Rev. 487 (2011).
- Benjamin I. Sachs, Despite Preemption: Making Labor Law in Cities and States, 124 Harv. L. Rev. 1153 (2011).
- Matthew Dinick, Revitalizing Union Democracy: Labor Law, Bureaucracy, and Workplace Association, 88 Denver U. L. Rev. 1 (2010).