May 13, 2011
The NLRB's Boeing Complaint: "#1 Issue to Resolve"
The craziness over the NLRB General Counsel's Boeing complaint continues (note to critics: this does NOT involve an NLRB Boeing decision, as there is no such thing at this point). The Hill has a recent article describing much of the GOP's reaction to the complaint, including Sen. Graham describing the complaint as “unprecedented” and his “'No. 1 issue to resolve.'” (The paranoia goes so far as suggesting that the NLRB is going after companies on a White House "enemies list.")
As I've said before, the law underlying the complaint is far from unprecedented and, if the allegations are true, one would have serious questions to ask the GC if he didn't bring a complaint. Obviously, Boeing disputes some of the allegations, but if there's a hearing we'll get more clarification on that. In the meantime, the difficulties that critics have had in trying to fashion a legislative response to the complaint indicates how much more attention they're giving to this issue than is warranted. The simple fact is that employer's have always received a great deal of deference in deciding where to operate and locate work--as long as they make sure not to cross certain lines, one of which is not relocating for the purpose of discouraging unionization as Boeing is alleged to have done here. It's primarily a matter of factfinding. If it turns out that Boeing was really motivated by economics rather than a desire to punish union activity, then they'll win. If, instead, Boeing's motivation was to punish union activity, then decades of law says that they violated the NLRB.
Hat Tip: Patrick Kavanagh
Bales Named to Regents Professorship at Northern Kentucky University
This is quite a special and prominent honor for Rick. Here is a description of the professorship:
The Regents Professorship established by the Board of Regents of Northern Kentucky University shall be awarded from time to time to those full professors who, at the apex of their careers, have an exceptional record of achievements in scholarship or creative activity that has brought acclaim to the university and is consistent with the university’s core values. The area of scholarship may include traditional scholarship as well as scholarship applied to teaching or public engagement. The award celebrates the accomplishments of the recipient and provides support through time and resources for the professor to focus on his/her work. Such work should bring further acclaim to the University and ultimately enhance the full breadth of the professor’s work.
Rick should be recognized as one of NKU's finest professors, as he is simply one of the finest labor and employment law and arbitration law professors in the country when it comes to the depth and quality of his scholarship and the innovation of his teaching. He is also, more importantly, a wonderful human being, who is constantly giving back to his colleagues and students (this blog is just one example).
I know that Rick will continue to have an exceptional record of achievement and also continue to bring acclaim to his university in this new professorship.
Estreicher on Negotiating the People's Capital Revisited
Sam Estreicher (NYU Law) has posted on SSRN his forthcoming piece in the Hofstra Labor and Employment Law Journal: Negotiating the People's Capital Revisited.
Here is the abstract:
What follows is the second part of an unofficial transcript of an off-the-record conversation among three of the labor movement's leading strategists. (The first installment appeared under the title “Strategy for Labor,” 22 J. Labor Research 569 (Summer 2001), and has been updated as “Strategy for Labor Revisited,” available www.ssrn.com). This second meeting was also convened by C, or "cooperationist," who had been for over ten years the president of a local union, part of a major industrial union, representing 3,000 employees who had been hired to staff a new manufacturing plant in a Southern town ("Newplant"). Newplant had been widely touted as a breakthrough in U.S. labor-management relations because it was consciously designed to promote greater participation of production and maintenance workers in business decisions and a “partnership” role role for union officials alongside traditional management officials. In bitterly contested local elections last year, C was voted out of office and now serves in a staff capacity at the AFL-CI0. A, or "adversarialist," perhaps surprisingly a longstanding friend of C, is the research director of another industrial union. A was very active in the Students for A Democratic Society in the 1960s, and after graduating from Oberlin College began his career as a labor organizer, working for a succession of unions that had been active in the McGovern-Kucinich wing of the Democratic Party. S, or "stay the course," is the highly respected chief of staff for a national union representing government workers. Section headings and parenthetical references are supplied by the editor and do not appear in the original transcript.
Fascinating and revealing. I, like many others, believe we are at a cross-roads in deciding how to promote employee voice in the New American workplace. This insights by different union strategists should give people much to ponder.
Going to ALI?
If you're going to the ALI Annual Meeting in San Francisco next week, please drop a comment to let us know to look for you!
May 11, 2011
DOL Releases Wage/Hour App
Here's an explanation from the Department of Labor's news release:
The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department's Wage and Hour Division.
Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.
This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.
The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.
May 10, 2011
Maher on the Benefits of Opt-In Federalism
Brendan S. Maher (Oklahoma City University School of Law) has posted on SSRN his forthcoming piece in the Boston College Law Review: The Benefits of Opt-In Federalism.
Here is the abstract:
The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.
Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.
A timely, relevant and innovative employee benefits piece that anyone interested in the debate over federal-state relations or questions swirling around the new health care reform law should be sure to read.
Working Mom's Financial Snapshot
Happy Mother's Day to our readers who are moms (or who have moms, or who are interested in mom issues). As a belated treat, I'll share the results of CareerBuilder's annual mother's day survey.
The picture isn't great. Of parents with children under 18 in the house, more than 35% of working moms and 44% working dads said they were the sole financial provider for their household. Of those, 45% of the sole-provider moms earned less than $35,000 per year (the number for men was 15%). 28% of sole-provider moms earned between $50,000 and $100,000 (63% for sole provider men). 7% earn $100,000 or more (18% of sole provider men). Many women (and more than men) must have refused to answer this question because these only add up to 80%, but it's still a pretty sobering picture that should help continue to dispel the myth that women working don't need the income because they're not providing for a family.
ABA Int'l LEL Section Conference
I'm in Berlin for the week with Marley Weiss (Maryland), Christine Cooper (Loyola Chicago), Manfred Weiss (Goethe-Frankfort), and a host of illustrious practitioners learning lots about international and cross-border labor/employment law and practice. We focused yesterday on German Works Councils, and today on cross-border labor mobility/migration and employment discrimination in the EU. Tomorrow we'll focus on EU data protection and privacy, and then I will be on a panel discussing attorney-client privilege in cross-border labor/employment disputes. Interesting stuff.
NLRB ALJ Rules Arbitral Class-Action Waiver Violates NLRA
The case is D.R. Horton, Inc. v. Cuda. At issue is whether a mandatory arbitration agreement containing a class-action wiaver (for a pre-Concepcion article on the topic of class-action waivers, see Waiving Rights Goodbye) (1) violates Section 8(a)(1) by maintaining and enforcing a mandatory arbitration agreement with its employees that unlawfully prohibits them from engaging in protected concerted activities, including joint arbitration claims or class action lawsuits; or (2) violates 8(a)(4) by leading employees reasonably to believe that they are barred or restricted from filing charges with the NLRB, thereby violating Section and 8(b)(1). The ALJ ruled no on issue (1), and yes on issue (2).
Both the employer and the General Counsel have filed exceptions. What's more, there's apparently now a request for amicus curiae status and proposed brief being filed by the SEIU.