April 16, 2011
Ikea: Swedish for Union-Busting?
Ikea's plant in Danville, Va is facing a series of labor and employment charges. Many are coming out of an attempt by the Machinists union to organize the plant. Employees allege that the plant is oppressive in general, with specifics including last-minute mandatory overtime, discrimination, captive-audience speeches, and extremely strict work rules. Ikea has responded by, among other things, hiring Jackson Lewis to stop the union effort.
An interesting aspect of this dispute is that Ikea's reputation in Sweden is that of national icon and very employee-friendly. This Danville dispute, unlike here, have been big news in Sweden. What this means is that the American workers have an additional avenue to put pressure on Ikea if they can take advantage of the support in Sweden and elsewhere in Europe. I've discussed this type of extra-territorial collective action (as have others) before, which can be successful, as several multi-national companies have discovered.
Hat Tip: Michael Duff
Employee Who Wouldn't Give False Invoices Loses Retaliatory Termination Case
An Illinois appellate court just issued a decision holding that a law firm did not violate public policy by firing an employee who objected to the firm's practice of giving its clients fraudulent billings. In Rabin v. Karlin & Fleisher, the firm used invoices that made it look as if outside investigators were doing work (billed at a higher rate) really done by its own employees. One of those in-house investigators ultimately objected and refused to alter his invoices. He, of course, was then fired.
The court held that the firm's practice did not violate any law or professional conduct rule, other than the broad duty to act with "scrupulous honesty and fidelity." But that duty was to general to warrant an exception to at-will under the clear statement of public policy exception. This is obviously one of many cases interpreting exceptions to at-will very narrowly--a troubling trend where, as here, the employee is being asked to do something patently wrong. Indeed, the court acknowledged that general duties were being violated, and allowing the employer to refuse to go along with that wrongdoing. If states are serious about wanting protection against retaliation and whistleblowing (and no doubt this is an intent that's often missing), then this decision makes no sense.
Hat Tip: Alex Long
April 15, 2011
Past Practice of One Union Does Not Apply to Later Union
The NLRB recently issued its decision in Eugene IovIne, a case involving an employer's unilateral change. The central issue was whether the employer did not need to bargain because it was merely following past practice. The concluded, as noted in the summary below, that the employer failed to establish evidence of a past practice. However, as Dennis Walsh noted to me, the Board also resolves a long outstanding issue (in footnote 3): whether past practice involving the employer and a predecessor union can be used against a subsequent union. The Board concluded that, even if evidence of past practice wit the prior union existed, it could not bind a different union:
The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off employees without providing the Union timely notice and an opportunity to bargain over the layoffs.
The Board rejected the Respondent’s affirmative defense that it was merely adhering to a consistent past practice of unilaterally implementing layoffs in response to work-or-weather-related delays on its construction projects. The Board found that the Respondent, which bears the burden of proving the existence of its past practice, failed to present evidence showing when, how frequently, or under what circumstances its asserted past practice of unilateral layoffs occurred. Absent such evidence, the Board concluded that the Respondent had not demonstrated that the challenged layoffs were permitted as a continuation of past practice. The Board agreed with the judge that the Respondent may not establish a past practice defense privileging its unilateral conduct based on the acquiescence of a prior union that represented unit employees prior to the current union.
Hat Tip: Dennis Walsh
Recently Published Scholarship
- Kerri Lynn Stone, Clarifying Stereotyping, 59 Kansas L. Rev. 591 (2011).
- Richard Marcus, Reviving Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification [i.e., in re Wal-Mart v. Dukes], 79 George Washington L. Rev. 324 (2011).
- Drew Willis & Richard Bales, Interpreting NLRB v. Burns Int'l Sec. Servs., Inc.: The Not So "Perfectly Clear" Successor Exception, 7 Seton Hall Cir. Rev. 1 (2010).
- Jacqueline Go, Another Move Away from Title VII: Why Gross Got It Right, 51 Santa Clara L. Rev. 1025 (2011).
April 14, 2011
Hodge on Employees as Stakeholders in EU Countries
Tom Hodge (a former student of mine from Vanderbilt) just posted on SSRN his article, "The Treatment of Employees as Stakeholders in the European Union: Current and Future Trends," which is being published in the Syracuse Journal of International Law and Commerce. The abstract:
The European Union is a free trade area made up of Member States with significantly divergent corporate governance systems, legal traditions and labor costs. That being the case, the question arises: will these factors prompt convergence amongst the Member States’ corporate governance systems and what impact will that have on the treatment of employees as stakeholders? This paper seeks to determine if either the shareholder-primacy or stakeholder-pluralist model will gain dominance in the EU. The natural result of the Anglo-American shareholder-primacy system emerging victorious would be the curtailment of employee rights as stakeholders. However, the author will seek to demonstrate that the far greater likelihood is that all EU Member States will move gradually in the direction of stakeholder-pluralist systems. This occurrence is in response to European Union legislation that has created minimum standards for employee involvement, or ‘voice,’ in corporations. Furthermore, it is likely that in the future the EU institutions will seek to strengthen employee involvement in corporations in keeping with the aim of creating a social market economy.
This article provides an interesting--and, for at least a lot of American scholarship, a somewhat controversial--take on an issue that will be important for the future of European workers. Check it out!
Psychology Perspectives on Discrimination
Richard Moberly (Nebraska) sends us word of the upcoming (April 21-22) conference Evolving Issues in Discrimination: Social Science and Legal Perspectives. Presenters include Catherine Smith (Denver) Henry Chambers (Richmond), and George Martinez (SMU). Here's the conference brochure; here's a conference description:
The UNL Law-Psychology Program is pleased to host its sixth conference on important topics in psychology and law, funded by a UNL Program of Excellence award. This conference consists of three substantive areas, each evaluating how the law currently protects people from discrimination with different levels of established protection. Speakers will present empirical approaches to the issues in question, address the behavioral assumptions that make up an area of law, and analyze the issues from legal, psychology, and public policy perspectives.
Labor-Management Conference at NKU
Northern Kentucky University is hosting its 29th Annual Labor-Management Conference on May 18. It's one of the two or three largest joint conferences of its kind in the U.S., and regularly draws speakers and attendees from throughout the country. The keynote speaker this year Ron Gettelfinger, President Emeritus of the UAW.
Atal on Increasing Women's Labor-Market Participation
Empirical studies find significant differences between the decisions taken by men and women in similar situations. The reason behind this may be the difference between their preferences. It is thus necessary to study the patterns of economic behavior, such as decisions pertaining to labour supply, recognizing their gender-specificity. This leads to important policy insights. This paper develops a theory of female labour supply in a general equilibrium framework where decisions are taken by the households and the power distribution among the members is determined endogenously. It is shown that female labour supply can take different shapes due to structural differences between economies, and multiple equilibria might occur in the female labour market. Effects of children and technological improvement on female labour supply are also studied. Policy implications of tax-benefit programs, subsidies for labour-saving household durables (like cooking oven), facilitating availability of drinking water and reservation for women at employment are worked out as well. The results found here resonate well with previous empirical findings and suggest additional testable implications.
Though the math is over my head, Vidya's findings are fascinating. She finds, for example, that neither workplace quotas not tax subsidies will necessarily have significant effects on women's participation in the workforce, but that subsidizing consumable durable goods that are labor-saving in household work -- such as washing machines -- can have a disproportionately huge impact.
April 13, 2011
Seiner on Punitive Damages, Due Process, and Employment Discrimination
Joe Seiner (South Carolina) has posted on SSRN his forthcoming piece in the Iowa Law Review: Punitive Damages, Due Process, and Employment Discrimination.
Here is the abstract:
The Supreme Court has failed to provide any substantive guidance on when punitive damages are appropriate in employment discrimination cases since it issued its seminal decision in Kolstad v. American Dental Association, 527 U.S. 526 (1999), over a decade ago. The Court has recently expanded its punitive damages jurisprudence in the high-profile decisions of Philip Morris v. Williams, 549 U.S. 346 (2007), and Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008). While these cases dramatically alter the way exemplary relief is analyzed in civil cases, the extent to which these decisions apply in the workplace context remains unclear. Surprisingly, there has been no academic literature to date explaining how Philip Morris and Exxon impact punitive damages claims brought by employment discrimination plaintiffs. This Article seeks to fill that substantial void in the scholarship, looking specifically at the potential due process implications.
Navigating the recent Supreme Court cases, this Article proposes a uniform analytical framework for analyzing punitive damages in cases brought under Title VII of the Civil Rights Act of 1964 (Title VII). The model proposed in this Article provides a blueprint for the courts and litigants when considering whether punitive relief is appropriate in an employment discrimination case. If adopted, the model set forth in this Article would resolve much of the uncertainty which currently exists in the lower courts over how to apply the remedial provisions of Title VII—as interpreted through the confusing Kolstad decision—to employment discrimination claims. This Article explains how this proposed framework would bring much more efficiency to the judicial process, and help define the future of workplace punitive damages.
Interesting article on a topic that needs to be looked at by the courts. Joe's analysis and proposal do a good job of filling in this void in employment discrimination law.
Smith, Craver, & Turner's 7th ed.
Congratulations to Arthur Smith (Ogletree Deakins), Charles Craver (GWU), and Ronald Turner (Houston) on the publication of the seventh edition of their casebook Employment Discrimination Law: Cases and Materials. The Lexis link to the book apparently is not yet up.
Discriminatory Billing Rates
... [T]here is a glass ceiling in the legal profession. It’s invisible, but it highlights the disparity between men and women lawyers. The latest evidence that women are shortchanged in the law is found in the 2011 Billing Rates & Practices Survey published by ALM Legal Intelligence.
Across the board, the average billing rates for women partners and associates are consistently lower than those of their male counterparts.
The average billing rate for males is $312 and for females it is $259 at a national level, representing more than a 20 percent gap, according to the ALM survey. The highest average hourly rate is $935 for males and $625 for females.
Kairys on Unconscious Racism
This article is the introduction to a law review symposium on unconscious racism and social science and statistical evidence of bias as bases for race discrimination claims, focusing concretely on discrimination in employment and housing. The article starts with an example of unconscious racism in the bail-setting court in Philadelphia. Two drunk-driving cases about a week apart were identical in all respects except the races of the defendants, but the judge, who was not an overt or self-perceived racist, showed empathy to the white drunk driver while his reaction to the black one was dominated by fear.
Unconscious racism specifically, and the biases and motivations of alleged discriminators in general, were not of much interest in civil rights law or litigation until the Supreme Court began, in the mid-1970s, to require specific proof of purposeful discrimination to make out a constitutional violation (less-demanding proof is required for certain statutory violations). The article presents a historical perspective on the development of perceptions of racial wrongdoing in law and in society generally, starting with the relatively recently accepted understanding that racism is wrong. About 50 or 60 year ago, racism on the part of government, private institutions and individuals became socially, morally and culturally wrong. Before that, racism in words and deeds was acceptable and not unusual, if not something like the norm.
However, deep-seated notions about race from slavery, Jim Crow, and segregation were still very much alive and persist today – notions of inferiority and superiority and racially attributed, stereotyped characteristics, like intelligence, perseverance, morality, tendencies to violence and sexual promiscuity. But in the legal realm and in society generally, we wound up focusing our attention almost exclusively on overt, explicit and formal inequality. Once they were banished, we declared a pre-mature victory in the struggle for racial equality. Explicitly racist and overtly segregationist measures were banned, and racial epithets became taboo. But we left in place the legacy of slavery and Jim Crow and segregation, and the remaining racism – the deep-seated, unconscious parts that do not just go away because a court declares explicit racism wrong. Progress was hindered further by a multi-faceted retrenchment by the courts. The adoption of the purposeful discrimination rule in the mid-1970s, which requires specific proof of a racial purpose or motive to establish a discrimination case, made it near impossible for minorities to win. The Supreme Court embraced a formal insensitivity to minority claims, even in circumstances that resemble the worst forms of the discrimination, segregation and disenfranchisement of African Americans that characterized the pre-civil rights past. Then a hypersensitive version of the purposeful discrimination rule was applied to invalidate good-faith affirmative and remedial action, by taking any consideration of race – even if done in good faith to open opportunities and eliminate discrimination – as sufficient proof of purposeful discrimination. Alongside and not unrelated to these legal developments, non-explicit forms of discrimination against African Americans and other minorities grew in number and significance, and became more easily non-explicit.
The use of social science and statistics to prove unconscious racism presents a possibility of dealing with at least some of these problems in the current context.
April 12, 2011
The New York Times has a story on a recent case that sounds like it was ripped out of a law school exam. The claim was made in New Jersey, which prohibits discrimination based on gender identity. The plaintiff was born female, but identifies as male and had sex-alteration surgery. The job at issue is one that classically fits under the BFOQ defense: a drug testing urine monitor (it's what it sounds like and was limited to males, like those being tested). Soon after being hired, the plaintiff was confronted about being transgendered and then fired. The employer's defense is essentially that the plaintiff was not a man--raising the question of how we should classify sex.
The case should be an test for the New Jersey statute, which hasn't faced a transgender discrimination case yet. It also prompts questions about whether the plaintiff would have a sex-based claim under Title VII or other laws that don't include gender identity as a protected class. There's at least a potential stereotyping claim in the air.
Hat Tip: Jessica Van Dyke
John Marshall's Ninth Annual Employee Benefits Symposium: The Changing Landscape of Executive Compensation Regulation and Reporting
Katie Kennedy (John Marshall) brings to our attention the Ninth Annual Employee Benefits Symposium: "The Changing Landscape of Executive Compensation Regulation and Reporting" (registration available online at this link).
The Symposium is scheduled on Friday, April 29, 2011 from 8:30 a.m.–1 p.m. in Room 503 at the John Marshall Law School in Chicago. Register by Friday, April 22, 2011. CLE Credits: 3.5 Hours. Alvin Lurie, Editor of the NYU Review of Employee Benefits and Executive Compensation and the first appointee as assistant commissioner of the IRS, Employee Plans & Exempt Organizations, will serve as moderator.
Here is a list of the presenters:
Payback Time: Issues Abound in Taxation of Compensation Clawbacks
Rosina B. Barker, Partner, Executive Compensation and Benefits
Ivins, Phillips & Barker, Chartered
Does Banker Pay Need to Be Regulated?
Eric D. Chason, Associate Professor, William and Mary Law School
Director, William and Mary Tax Conference
"Say on Pay": An Opportunity in Disguise?
Marianne W. Culver
Partner, Ungaretti & Harris
Marshall T. Scott
Director, Executive Compensation, Towers Watson
Principles Based Governance of Executive Compensation
President, The Delves Group
ESOP Plans: A Method for Succession Planning and Selling Your Company
Brian D. Hector
Partner, Morgan Lewis
Adjunct Professor, The John Marshall Law School
Design and Drafting Considerations for Executive Compensation "Clawback" Policies Required by
Steven R. Lifson
Partner, Seyfarth Shaw LLP
Should be a great event!
Basas, Williford & Enyart on Lawyers with Disabilities Share Their Insights
Congratulations to Carrie Basas, Rebecca Williford, and Stephanie Enyart on the publication of their new book: Lawyers, Lead On: Lawyers with Disabilities Share Their Insights (ABA 2011).
From the press release:
Lawyers, Lead On: Lawyers with Disabilities Share Their Insightsis an inspiring collection of letters of encouragement and advice from lawyers with disabilities. The book features authors with a range of experiences that honor different perspectives on work and disability, including people with non-apparent disabilities, people of color, women, LGBT lawyers, older lawyers, and others. Their moving stories help foster a cross-disability community and offer hope and encouragement to students, young lawyers and all who face adversity in the legal profession.
Chapter 1: The Transition to Law School
Chapter 2: Disability and Disclosure
Chapter 3: Disability Identity
Chapter 4: The Foundation of a Meaningful Career
Chapter 5: Awareness Building in the Profession
Chapter 6: Reflections on the Disability Rights Movement
I am particularly looking forward to reading Paul Miller's contribution to this book.
Wal-Mart Amicus Brief
The U.S. Supreme Court Amicus Brief of Civil Procedure Professors in Support of Respondents, Wal-Mart Stores, Inc. v. Dukes, No. 10-277 is now up on SSRN. Written by Alexandra Lahav, Arthur Miller, Paul Secunda, Adam Steinman, and Melissa Hart, the brief was cited recently in a New York Times editorial arguing that the Supreme Court should allow the Wal-Mart case to go forward as a class action.
Secunda on Pension Rights & the Contract Clause
Paul Secunda (Marquette) has just posted on SSRN his timely article (forthcoming Hofstra LELJ) Constitutional Contracts Clause Challenges in Public Pension Litigation. Here's the abstract:
The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the necessary legal justification.
Although such Contracts Clause litigation might be successful in a suit brought by the City of Milwaukee on behalf of its employees, it is unclear whether such arguments will be successful in other parts of Wisconsin or in other states. As the examination of pending pension litigation in other states underscores, there will also be different types of state legislation that may run afoul of public pension rights under the particular provisions of a state's pension laws. Because of the lack of legal uniformity in public pension regulation from one state to the next, the only possible way to determine whether state curtailment of public employee pension rights will be constitutional is by undertaking an in-depth legal analysis of the applicable pension laws, regulations, ordinances, court opinions, and prior case settlements.
Corbin on Government Religious Speech
Caroline Corbin (Miami) has just posted on SSRN her article (Iowas L. REv.) Nonbelievers and Government Religious Speech. It's a Con Law topic written largely from an employment discrimination perspective. Here's the abstract:
In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination.
This Article argues that government religious speech such as “In God We Trust” or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the main goals of the Establishment Clause is to protect religious minorities like nonbelievers. Contrary to claims that government religious speech is essentially harmless, and that any offense it causes should not be considered of constitutional dimension, government religious speech harms both the equality and liberty of nonbelievers. It undermines the equality of nonbelievers by sending the message that they are not worthy of equal regard and by reinforcing stereotypes - in particular, that atheists are immoral and unpatriotic - which lead to discrimination against them. The perpetuation of these stereotypes also undermines the liberty of nonbelievers by making them less willing, or even afraid, to follow the dictates of their conscience. In short, the claim that government religious speech does not violate the Establishment Clause because it only offends nonbelievers misunderstands exactly what is at stake.
Happy Equal Pay Day
We're at that time of year again, the day at which women's pay catches up with men's pay for 2010. Although the cause of this disparity is hotly contested, the fact that it exists is not. In recognition of the significance of the day, Senator Barbara Mikulski (D-Md.) and Representative Rosa DeLauro (D. Conn.) will reintroduce the Paycheck Fairness Act Last year, the Paycheck Fairness Act passed the House and was two votes shy of overcoming a filibuster in the Senate in the last Congress.
Given the philosophical differences in the current Congress on what creates jobs, and skepticism at pay claims like that in Wal-Mart v. Dukes, I'm not optimistic that the bill will pass even the House this time.
--and for more fun facts about Equal Pay, see the posts at Blog for Fair Pay Day, sponsored by the National Women's Law Center and MomsRising.org.
April 11, 2011
Workplace Prof Moves for 2011-2012
It is that time again - the annual report of workplace law professors comings, goings, etc. (as always, if you have additional information, please provide in the comments). This post will be updated and moved to the top as additional information comes in.
Entry Level Hires
- Matthew Dimick (Law Research Fellow at Georgetown University Law School) to Buffalo Law
- Charlotte Garden (Teaching Fellow at Georgetown University Law School) to Seattle U.
- Brian Clarke (Washington & Lee adjunct) to Charlotte Law
- Jason Bent (VAP at Penn State) to Stetson
- Deborah Eisenberg (Visitor at Maryland) to Maryland Law
- Dave Sidhu (Baltimore Law adjunct) to New Mexico Law
- Jessice Clarke (Columbia Assoc-in-Law) to Minnesota
Promotions and Tenures
- Juliet Stumpf (Lewis & Clark) has been promoted to Professor
- Lisa Durham Taylor (Atlanta's John Marshall) has been promoted and awarded tenure
- Emily Gold Waldman (Pace) has been promoted and awarded tenure
- Keith Cummingham-Parmeter (Willamette) has been promoted and awarded tenure
- Joe Seiner (South Carolina) has been promoted and awarded tenure
- Ann Lofaso (West Virginia) has bee promoted and awarded tenure
Administrative Appointments and Honors
- Nicole Porter (Toledo) to Associate Dean for Academic Affairs
- Richard Moberly (Nebraska) to Associate Dean
- Jane Korn (Arizona) to Dean at Gonzaga
- Angela Onwauchi-Willig (Iowa) appointed to American Law Institute (ALI)
- Rick Bales (N. Ky-Chase) appointed to American Law Institute (ALI)
- Wendy Greene (Samford-Cumberland) named recipient of the 2011 Harvey S. Jackson Excellence in Teaching Award for Upper Level Courses
- Nancy Hogshead-Makar (Flordia Coastal) named Senior Director of Advocacy at the Women's Sport Foundation (WSF)
- Rick Bales (N. Ky.-Chase) named the 2010 Frank Sinton Milburn Outstanding Professor at the University of Northern Kentucky
- Kathy Stone (UCLA) named the Arjay and Francis Miller Professor of Law
- Nancy Levit (UMKC) received the University of Missouri-Kansas City Chancellor’s Award for Teaching (for the entire university!)
- Miriam Cherry (McGeorge-Pacific) to Saint Louis University
- Ruben Garcia (Cal Western) to UNLV
- Jeff Hirsch (Tennessee) to UNC
- Jim Brudney (Ohio State) to Fordham
- Nancy Leong (William & Mary) to Denver
- Sandra Sperino (Temple) to Cincinnati
- Juan Perea (Florida) to Loyola-Chicago
- Paul Secunda (Marquette) to Wisconsin (Fall 2011)
- Aaron Lacy (SMU) to Pitt (2011-2012)
- Ben Bratman (Pitt) to McGeorge-Pacific (2011-2012)
- Andrew Stumpff (Michigan Instructor) has been appointed as an Adjunct Professor for the summer of 2011 in the University of Alabama's LL.M in Taxation program
- Michael Nader (Bakers Daniel) to Adjunct at Notre Dame Law (starting Spring 2011)
- Paul Harpur (Griffith University - Australia) to Doctorate Research Felowship at University of Queensland at the TC Beirne School of Law.
- Michael Waggoner (Colorado)
- Clyde Summers (Penn)
- Nell Hennessy (Georgetown)
- Eric Schmertz (Hofstra)
- Paul Miller (Washington)
- Alan Lerner (Penn)