March 25, 2011
Wisconsin Law Published Despite TRO
Update (PS): I have been doing a lot of digging on this and it appears that "publication" of the Budget Repair Bill this evening by the Legislative Reference Bureau (LRB) means nothing legally (this according to the LRB itself - "I think this is a ministerial act that forwards it to the secretary of state," said Stephen Miller, director of the Legislative Reference Bureau. "I don't think this act makes it become effective. My understanding is that the secretary of state has to publish it in the (official state) newspaper for it to become effective.").
Wisconsin law states clearly that the law must be published by the Wisconsin Secretary of State. So the printing by the LRB is not the same as publication by the Sec. of State. Nevertheless, because Wisconsin Republicans are acting as if this is a legally significant event, I expect more litigation, and perhaps a petition for contempt, as a result of these latest Republican shenanigans.
The intrigue continues. Despite a judge's order barring publication of the Wisconsin anti-public collective bargaining law, a state agency has published it anyway. Gov. Walker is stating that this is all that is required to enforce the law, while opponents are arguing that the Secretary of State must officially publish it. I have no idea what Wisconsin law says about this. However, this is likely to go back to a judge who is going to be mighty peeved that a court order was seemingly ignored.
What remains to be seen is whether the publication was intentional or some sort of clerical error, or whether the agency (the Legislative Reference Bureau) was covered by the TRO. The judge's order (at least what I've read of it) referenced the Secretary of State, so it's not clear at this point whether the agency--which says that is has to publish all laws within 10 days of enactment--is covered by the order. My guess is that either the publication is held insufficient to enforce the law or, if it's official enough, it will be held in violation of the TRO. Or, Wisconsin Republicans will just pass the same thing the right way and make all of this moot.
Wisconsin Court of Appeals Upholds Milwaukee Sick Leave Ordinance
In the midst of fighting against the evisceration of public employee collective bargaining rights in the State of Wisconsin, workers in the Dairy State found out yesterday some good news: the Milwaukee Sick Leave Oridnance, enacted into law by the voters by an overwhelming margin in 2008, was re-validated by the Wisconsin Court of Appeals.
Rather than re-invent the analysis on this one, here is a helpful summary from CCH Employment Law Daily (subscription required):
The Wisconsin Court of Appeals has upheld an ordinance passed by the City of Milwaukee requiring employers to provide paid sick leave to their workers, reversing a state circuit court ruling declaring the measure unconstitutional and lifting a two-year injunction barring the city from enacting its provisions (Metro Milwaukee Assoc of Commerce v City of Milwaukee, March 24, 2011, Vergeront, M, P.J.). The appeals court found that the ballot measure by which the ordinance had been passed was in compliance with statutory requirements. Moreover, the ordinance itself and the specific provisions at issue did not violate due process and were not preempted by various state laws, the NLRA, or the LMRA. Nor does the ordinance violate state and federal constitutional prohibitions against impairment of contracts (a finding the lower court also made) or impermissibly regulate activity outside Milwaukee’s city limits.
This law will help workers be able to accrue sick leave when their employers do not otherwise provide this common benefit. It is just a first step to making the workplace in Milwaukee a little more just, but it is an important one.
More on the Triangle Fire and Workers Today
As Jeff noted yesterday, today is the 100th anniversary of the fire at the Triangle Shirtwaist Factory in New York City. It was the largest industrial accident in NYC history, and I think remains the second largest industrial accident in U.S. history.
With this anniversary come a number of excellent documentaries on the subject. Earlier this month, PBS's American Experience series (from WGBH in Boston) explored the fire, and you can watch that program and access many original materials here. HBO also has a documentary on the fire, and its website provides links to useful resources as well. For more in the way of documents, if you're interested, check out Cornell's ILR School site devoted to the fire, and UMKC has documents from the trial of the factory owners as part of its famous trial series online. The tragedy helped to mobilize people to push harder for protective labor legislation in New York and across the country, efforts that had already been underway, but which gained significantly greater momentum.
This anniversary is particularly interesting juxtaposed against today's current labor climate. We have the examples of the recent legislative efforts to strip public workers of collective bargaining rights in a number of states, but most visibly in Wisconsin. And in my own current state of Missouri, there seems an outright revolution in the works. We have a movement called "Fix the 6," proposed by business interests in the state. The program touches on some tax and broader tort reform issues, but primarily focuses on employment. The legislative agenda seeks to limit awards and make it harder for employees to get to trial in employment discrimination cases (h/t Erin Clark, for links to a summary of the legislation and this anti-legislation video), to roll back whistleblower protections (h/t Roger Goldman for the link to this article), and to repeal automatic increases to the minimum wage to keep pace with inflation. In addition to these, there was a bill to make union security clauses in collective bargaining agreements illegal--the so-called right to work legislation. While the right to work bill stalled in the Missouri Senate, the discrimination legislation has passed the House, and the whistleblower legislation has passed the Senate.
I'm struck, as likely many readers of this blog are, by all of this movement, much of it flying in the face of opinion polls, and wonder, why now and what does it mean? All of these bills are labeled as making our state more competitive for industry--as job-creating measures. Has the Great Recession made legislators think that workers (or seeking-work-ers) are so desperate that they will vote against their self interest in one sense--we often do, so maybe that's right--in the hopes that the resulting largesse to company profits will trickle down to them? Is this the kind of race to the bottom that might demonstrate that Brandeis' notion of states-as-laboratories has serious limitations at least when it comes to measuring justice values against scarce economic resources?
Are these multi-layered efforts going on in other states too? I'd love to hear about it or your thoughts in the comments.
Craver & Secunda Say Labor at Crossroads
If the outpouring of protest against the Wisconsin Legislature’s controversial approval of a bill – signed into law earlier this month – that sharply curtails the collective bargaining rights of most of the state’s public sector employees is any indication, there may be a battle of epic proportions underfoot in U.S. labor relations. As many as 100,000 protestors flooded the state capital the day after the Governor signed the bill into law, according to media reports. Amid a mounting fl urry of legislative initiatives to constrain public sector bargaining rights, similar bills introduced in Indiana, Ohio and Iowa have
also drawn substantial protest.
“We are at one of the most critical points in our history with respect to the rights of private sector workers in general and the continued viability of unions in particular,” observes Charles Craver, Freda H. Alverson Professor of Law, George Washington University Law School.
Even if states’ eff orts to sharply curtail the collective bargaining rights of public employees are lawful, such actions raise questions in the eyes of some about the way democracies should function. Paul Secunda, Associate Professor of Law, Marquette University Law School, off ered fi ve reasons why he believes Wisconsin Governor Scott Walker’s attack on unions is undemocratic:
- Unions are democratic organizations that provide workers a collective voice in society and in the workplace. They are a countervailing power to employers, employer organizations and governments that promote business interests at the expense of working people and fair social values.
Glynn, Arnow-Richman, & Sullivan Publish 2d ed. of Employment Law Casebook
Congratulations to Tim Glynn (Seton Hall), Rachel Arnow-Richman (Denver), and Charlie Sullivan (Seton Hall) on the publication of the second edition of their book Employment Law Private Ordering and Its Limitations. Here's the publisher's description:
Employment Law: Private Ordering and Its Limitations, is organized around the rights and duties that flow between parties in an employment relationship. Cases, detailed discussion of the facts, and accessible notes and questions examine the laws that are intended to balance the competing interests and contractual obligations between employer and employee. Problem exercises encourage students to think creatively about how best to protect the interests of workers or employers. Practitioner exercises in planning, drafting, advising, and negotiating develop transactional lawyering skills.
Philly Gets New Antidiscrimination Ordinance
Sarah Ricks (Rutgers-Camden) writes to tell us that yesterday, Philadelphia's Mayor Michael Nutter signed new antidiscrimination protections into law. The new law expands protections for victims of domestic and sexual violence and for members of the LGBT community, expands the class of defendants, increases enforcement power of the Philadelphia Commission on Human Relations, and by adds reasonable attorneys' fees. City Council unanimously voted for the expanded coverage earlier this month.
The new law was drafted by the Philadelphia Commission on Human Relations. Among the seven Commissioners are three law professors: Regina Austin (Penn), Fernando Chang-Muy (Penn), and Sarah Ricks (Rutgers-Camden).
Here's the full text of the Ordinance.
Lofaso on Coal Miners and Dangerous Jobs
In 2007, I published Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective, which raised, but did not answer, the following question: What do citizens of a "just" society owe workers, such as coal miners, who daily risk their lives for our collective comfort? I endeavor to answer that question in What We Owe Our Coal Miners.
I begin with three observations. First, borrowing from philosopher Thomas Scanlon, I observe that justice requires us to justify dangerous jobs by presenting reasons that “no one could reasonably reject as a basis for informed, unforced, general agreement.” In this context, I note that underground miners put themselves in physical danger and health risk to generate energy for all members of our society. Accordingly, those who benefit from the fruits of their labor owe reasons to those miners. Second, I acknowledge my own bias to live in a society that directly values the dignity of human life. Third, I note that the free-market argument does not directly value life, but values efficiency instead, which leads inevitably to markets clearing at a Kaldor-Hicks efficient level of fatalities as an acceptable risk rather than policies promoting the safest possible workplace.
Accepting that, in reality, the political will does not exist to stop underground mining, the question becomes—what do we owe our coal miners? My conclusion, of course, is safer working conditions, but not after considerable deconstruction of free-market justifications. I begin by relating the human cost of meeting global energy demand through the profitable coal mining industry. Using economic data and historical circumstances, I then show the enormous power disparity between the well-compensated coal mine operators and coal miners, who actually risk their lives and health to mine the coal that generates about half of U.S. electricity. I draw the conclusion that the coal industry is particularly well-suited for collective bargaining because it is precisely the type of industry—large disparities in labor-management bargaining power with the potential for enormous disruptions in interstate commerce—that Congress had in mind when passing the National Labor Relations Act.
In searching for a solution that presents sufficient reasons to justify coal mining, I test the hypothesis whether coal mining laws have in fact resulted in safer mines. Using a broken stick statistical method, I show that coal mine laws have in fact resulted in safer mines. Observing further that union mines have resulted in fewer disasters than nonunion mines in the past several decades, I argue for imposing the union model on top of this regulatory floor of rights. This solution has the added benefit of empowering those individuals who are actually risking their lives for our collective comfort. I end with the hope that this model for dignifying human life can be used for analyzing other dangerous jobs in crucial industries.
Rescuing Disparate Treatment Law
For those who worry about what's going to happen with systemic disparate treatment, Tristin Green and Noah Zatz.have organized a Working Group on The Future of Systemic Disparate Treatment Law, whose title says it all.
Given that Wal-Mart v. Dukes will be argued by the Supreme Court next week, I view the group as a vote of confidence that the substantive theory will continue to function once the Court resolves the procedural question of class certification in Wal-Mart. I hope they're right!
The Group met for a full day of critical discussion on March 18, 2011 at the University of San Francisco School of Law. Collaboration, critique, and engaged discussion are to continue. Papers will be published in Volume 32 of the Berkeley Journal of Employment and Labor Law (forthcoming winter 2011).
Members of the Working Group:
Richard Ford (Stanford Law)
Tristin Green (University of San Francisco Law)
Melissa Hart (University of Colorado Law)
Michael Selmi (GW Law)
Noah Zatz (UCLA Law)
If you want to get a taste of what we can look for out of this timely collaboration, see
Tristin K. Green, The Future of Systemic Disparate Treatment Law, 32 Berk. J. of Emp. & Lab. L. __ (forthcoming 2011). – http://ssrn.com/abstract=1793425
Papers by other members of the group should follow and I'm sure they'll all be interested in any thoughts blog readers might have on this project. They should brace themselves for mine!
March 24, 2011
Registration Open for Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law
I am happy to annouce that the Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law will take place in Los Angeles and be hosted by Loyola-LA Law School, Southwestern Law School, and the UCLA School of Law. Colloquium organizers include: Michael Waterstone (Loyola-LA), Gowri Ramachandran (Southwest), and Noah Zatz (UCLA). It will take place on September 16-17, 2011.
Here is the registration page for those of you who would either like to just attend and for those of you who also wish to present a paper. The registration deadline for the Colloquium is August 11, 2011.
Additional information about lodging can also be found on the Colloquium website.
EEOC Issues Final ADAAA Regs
The EEOC has just released the final regulations to the ADA Amendments Act. The EEOC conveniently has collected at one site the ADAAA, the new regs, a Q&A on the ADAAA, and a fact sheet on the new regs.
Triangle Shirtwaist Fire Anniversary
As many readers are already aware, tomorrow is the 100 year anniversary of the Triangle Shirtwaist Factory fire, in which which 146 people died. The New York Times has numerous articles and collections of photographs here, many of which are extraordinarily poignant. Harold Meyerson, in the Washington Post, also has an op-ed that shows what a tremendous effect the disaster had on the formation of labor and employment laws in this country, and reminds us that a union campaign prior to the fire had sought sprinklers and unlocked stairwells that would have likely saved many of the lives that were lost.
March 23, 2011
Department of Pet Peeves
I was doing the final changes on an article a couple of days ago, operating under the journal's 24-hour turn-
around rule, when I pulled a recent SSRN post from my pile of updates to plug in a citation. The first thing I saw was a footer with "Draft -- do not quote or cite without the author's permission." (the bold is the author's). So I didn't.
If I'd had the time or the inclination, I guess I could have contacted the author for permission to cite, but I really didn't have the time. And, to be frank, I didn't think I should have had to do so So in this instance I honored the author's desires (at least her expression of them -- you'd think it was a good thing for an assistant professor to be cited). But I object to practice of so labeling pieces that, although titled "working papers," are for all practical purposes publications.
Thanks to SSRN and its brethren, we seem to have arrived at the point in scholarship that I call the "unpublished publications." By this I mean that scholars are free to disseminate their ideas while simultaneously disclaiming responsibility for them. In the instance at hand, the author had 40 downloads, all of whom had to seek her permission to even cite, much less quote, her.
Now I confident that this particular author had no ulterior motives and had, without much thought, continued on SSRN a practice that probably began with authors workshopping pieces at other schools, pieces that were (at least in theory) works really in progress and therefore not ready for prime time. In fact, I'm pretty sure that's why so many nonpublished publications appear on SSRN, and that network's description of these as "working papers" undoubtedly contributes to the phenomenon.
And I'm also pretty sure that the boldfaced warning doesn't legally preclude me from both citing and quoting to my heart's content (at least with the limits of copyright fair use). But I am afraid a scholarly norm may be developing to honor such requests, and I think that's wrongheaded.
Really, once an author releases his or her work into cyberspace where it is accessible to pretty much anyone with a computer, is it appropriate to claim that the work isn't published? Can the workshopping idea be pushed so far?
I suspect that the whole phenomenon is akin to staking one's claim in a gold mine. Authors would prefer, all else being equal, not to publish until their work is perfect. But they also want to go on record as having been the first to bestow a new idea on the world. Thus, the have-you-cake-and-eat-it "do not cite" compromise, which stakes a claim while disclaiming responsibility for whatever is says.
I expect any reader who has slogged through to this point might be asking whether Sullivan isn't making a mountain out of molehill? Absolutely -- nothing will stand or fall on whether my article cites another article and that's likely to be true even if a lot of authors as lazy or time-pressured as I don't bother to seek permission from those they would otherwise cite.
But, as they say, it's the principle of the thing. Maybe the analogy is the "unpublished opinions" which couldn't (before a relatively recent change in the FRAP, couldn't be cited to the circuit that decided them). Most in the academy thought that was wrong-headed, and it was finally changed. Ironically, the academy itself now seems to be reinventing a version of it with no one noticing.
Finally, notice an odd phenomenon: if the do-not-cite disclaimer is routinely honored -- only those upon whom the author puts her imprimatur can cite it, presumably to heap praise upon it. Those who might want to criticize it can be denied permission to do so! Now, I don't really think that's likely to happen, but the logical possibility should give us pause before we use, or honor, such disclaimers.
Arthurs on Purposive Labour Law
As if on cue, Harry Arthurs has dished up a rejoinder of sorts to Alan Hyde's parable I posted on yesterday. Read them together. Harry's article, just posted on SSRN, is Labour Law after Labour. Here's the abstract:
‘What is labour law for?’ is a question with a past. I therefore begin by sketching out its history. It has a present too, whose most striking feature – I argue – may well be the end of ‘labour’. And of course it has a future: what will labour law look like ‘after labour’? I address all three questions largely from a North American perspective, but with reference to experience in the United Kingdom and Europe.
4th Circuit Rules for Employee in Same-Sex Harassment Case
Jon Harkavy shares with us this important, though unpublished, decision by the Fourth Circuit in favor of of an employee in a case involving same-sex sexual harassment by non-employees (employees of the employer's biggest customer). The case is EEOC v Cromer.
March 22, 2011
Supreme Court Rules that Oral Complaint Can Support FLSA Retaliation Claim
First, Mr. Kasten is the father of one of my students, Lucas, here at Marquette University Law School. Lucas is very happy this morning.
Second, Richard Moberly (Nebraska) points out that retaliation plaintiffs are now 7 for 7 at the United States Supreme Court since the Court's Jackson decision in 2005.
Finally, Richard points out that the decision in Kasten is consistent with his theory that these retaltion cases are all just about law enforcement for the Court. See Richard's recent law review piece in the Case Western Law Review article - The Supreme Court's Antiretaliation Principle - where he elaborates on this point. As for Kasten, there are some passages in that decision that seem to confirm this view that antiretaliation provisions will be interpreted broadly because they are vital to the enforcement scheme for the statute.
The U.S. Cupreme Court has just ruled, 6-2, that the Fair Labor Standards Act's anti-retaliation provision applies to oral as well as written complaints. The statutory language prohibits employers from discharging "any employee because such employee has filed any complaint" alleging a violation of" the statute. The Majority (Breyer) held that the text of the statute did not resolve the issue, so the Court looked other sources of authority such as the FLSA's basic objectives, an interpretation by the Secretary of Labor, and consistency with the interpretation of the National Labor Relations Act. The dissent (Scalia, Thomas) argued that the FLSA's retaliation provision does not cover complaints to the employer but only complaints to a court or government agency.
The case is Kasten v. Saint-Gobain Performance Plastics.
Hat tip: Ross Runkel.
Hyde Says Labor Theory is Bunk
Alan Hyde (Rutgers-Newark) has just posted on SSRN his chapter The Idea of the Idea of Labour Law: A Parable, from the forthcoming The Idea of Labour Law, Langille, Davidov, eds., Oxford University Press, 2011. Here's the abstract:
In times and places when labor law functions as an important social institution, participants in the system often hold conflicting and overlapping conceptions of its purpose (e.g. wealth redistribution, democracy, conflict resolution) without apparent dissonance or dysfunction. Paradoxically, as labor law declines in social importance, academics assert increasingly bizarre and untethered concepts of its basic purpose (e.g. Kantian ethics, lowered transaction costs, solving collective action problems). These concepts reflect the need of teachers of labor law to justify their choice of subject and place in the academy as the social importance of their institution declines. Soon, however, labor law, like securities or banking regulation, will be understood as orderly procedures by which specialists accomplish technical ends, without any expectation that the field will inspire politically or morally.
Warns LEL Institute June 23-24
The 28th Annual Carl A. Warns, Jr., Labor and Employment Law Institute will be held on June 23 - 24, 2011 in Louisville. The title of this year's Institute is Changing Technology and the Impact on Work Law. Here's the program.
March 21, 2011
Secunda on OSHA and Japan's Nuclear Crisis
Proving yet again that he is a man of many specialties, our Paul Secunda was cited in a recent MSNBC article on safety issues as they relate to the nuclear crisis in Japan:
The Occupational Safety and Health Act of 1970, which created the federal safety agency, OSHA, covers all private sector employees and federal employees, but not state and or local government workers, said Paul Secunda, associate law professor at Marquette University Law School in Milwaukee, Wis. There are 21 states, he added, that cover public employees, and many of those employees are in industrial states. . . .
At nuclear facilities OSHA has partial jurisdiction on worker safety, but not when it comes to radiation exposure. According to a 1988 memorandum between the two agencies, the Nuclear Regulatory Commission oversees radiation and chemical risks at NRC-licensed facilities, while OSHA handles general occupational risks at plants.
This doesn’t mean protections for those workers when it comes to radiation exposure are any less stringent than employee safety safeguards in any other industry, Secunda maintained. “You are not required to work in conditions [that] would either cause you serious health problems or death,” Secunda said, although he said there may be some exemptions for public emergencies, such as the one in Japan. . . .
Also, if a worker thinks he or she is in imminent danger at work, he continued, that employee doesn’t have to even notify OSHA. The worker can just walk off the job and be protected from being fired or demoted as a result. “OSHA has the ability to close down workplaces that are too hazardous,” Secunda said. Workers may not understand the risks they’re taking, or they may have been coerced into doing a dangerous job with the promise of a big payoff, he noted.
In the case of the Japanese nuclear plant workers, “a communitarian standard and the fear of shaming your family” may be driving the decisions to go back into the nuclear plant, said Secunda, who spent time in Japan and has written papers on Japanese dispute resolution. “There’s a sense of social responsibility the Japanese have that we are lacking,” he noted. They see it, he said, “as glorious to give your life for a greater cause. They came up with Kamikazes, after all.”
Garden on Citizens, United and Citizens United: The Future of Labor Speech Rights
Charlotte Garden (starting at Seattle next year) has posted on SSRN her forthcoming piece in the William and Mary Law Review: Citizens, United and Citizens United: The Future of Labor Speech Rights.
Here is the abstract:
Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest labor unions - even though the decision applies equally to unions and for-profit corporations. The reason is clear: there exist both practical and structural impediments that will prevent unions from benefitting from Citizens United to the same extent as corporations. Therefore, Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.
This Article, however, takes a broader view of Citizens United to explore a possible “silver lining” for labor. It posits that, in articulating a wide-ranging vision of associations’ free speech rights, the Court undermined the intellectual basis of a lengthy string of cases limiting the First Amendment protection applicable to labor-related speech in other contexts, including picketing, boycotting, and striking. Additionally, by discounting the First Amendment interests of dissenting shareholders, Citizens United also calls into question the validity of restrictions on unions’ use of lawfully collected dues and fees for political speech and new organizing. Accordingly, this Article concludes that Citizens United has the potential to impact significantly unions’ First Amendment rights outside of the campaign finance arena.
I had the pleasure of hearing Charlotte present this article last September in St. Louis at the Fifth Annual Colloquium on Labor and Employment Law. Not only does it open up new territory in discussing the potential impact of the Citizen United case as far as unions and campaign spending, it provocatively maintains that Citizens United could have a much more far-reaching and detrimental effects on the First Amendment rights of employees in other contexts. Check it out; it is a great read!
NLRB On Concerted Activity
The NLRB recently issued a decision (2-1) in WorldMark by Wyndham that addressed whether activity is concerted. The case focused on an employer disciplining an employee who objected to a new dress code rule—requiring men to tuck in their shirts, including the Tommy Bahama shirts that was popular at the workplace. The majority fond it concerted under the Meyer Transportation “inciting action” rationale because he made the objection in the presence of other workers, a coworker joined in the protest, and the employer viewed the worker as “inciting” another worker to join in the protest. The Board also disagreed with the ALJ that the failure to discuss the action ahead of time was significant—an important point in this case, because a supervisor had just informed the worker of the new rule.
Member Hayes dissented, arguing that the was no evidence that the worker was trying to induce group action or act on behalf of his coworkers. He asserted further that there was no evidence that the employee or even knew of his coworkers’ views on the new rule. Under Hayes’ view, the coworker who joined in was a separate, spontaneous outburst that did not constitute concerted activity.
Also check out David Foley's case animation from the LaborRelated Blog.
Hat Tip: Dennis Walsh