January 14, 2011
NLRB: State Secret-Ballot Measures Are Preempted
The NLRB has just informed the Attorneys General of four states that they're new laws requiring secret-ballot elections for union recognition are preempted by the NLRA. From the Board's notice:
The National Labor Relations Board today advised the Attorneys General of Arizona, South Carolina, South Dakota, and Utah that recently-approved state constitutional amendments governing the method by which employees choose union representation conflict with federal labor law and therefore are preempted by the Supremacy Clause of the U.S. Constitution.
The states were also advised that the Board has authorized the Acting General Counsel to file lawsuits in federal court, if necessary, to enjoin them from enforcing the laws.
Under the 1935 National Labor Relations Act, private-sector employees have two ways to choose a union: They may vote in a secret-ballot election conducted by the NLRB, or they may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means.
The state amendments prohibit the second method and therefore interfere with the exercise of a well-established federally-protected right. For that reason, they are preempted by the Supremacy Clause of the U.S. Constitution. . . . The amendments have already taken effect in South Dakota and Utah, and are expected to become effective soon in Arizona and South Carolina.
As I've said in our earlier reporting on these measures, this is a no-brainer. I only wonder whether the various state officials will be willing to waste the money to continue to make their political points on this issue.
Hat Tip: Jason Walta & Justin Keith
Using Social Media in Employment Litigation
Eric Meyer (Dilworth Paxson (employer-side)) has posted a pair of essays on how to use social media strategically when litigating employment cases. His first essay, How Facebook Can Make Or Break Your Case, is written from the defense perspective; his secon essay, The Plaintiff's Arsenal, is written from the plaintiff's perspective. Both essays discuss using social media to vet clients and witnesses, to build a case during discovery, and the like.
Adams on Integration as Discrimination (in re Ricci)
Is integration a form of discrimination? Remarkably, recent Supreme Court doctrine suggests that the answer to this question may well be yes. In Ricci v. DeStefano, the Court characterizes - for the very first time - government action taken to avoid disparate-impact liability and to integrate the workplace as "race-based," and then invalidates that action under a heightened level of judicial review. Consequently, Ricci suggests that the Court is open to the "equivalence doctrine," which posits that laws intended to racially integrate are morally and constitutionally equivalent to laws intended to racially separate. Under the equivalence doctrine, integration is simply another form of discrimination. The Court has not yet fully embraced this view. Ricci contains a significant limiting principle: In order to be actionable, the government’s action must create racial harm, i.e., single out individuals on the basis of their race for some type of adverse treatment. Thus, the lesson of Ricci is not that governmental action with an integrative motive is always prohibited (at least for now); instead it is that racial harm really matters. The challenge for the government seeking to increase integration is to design facially race-neutral programs that open up access to opportunity and increase integration without imposing racial harm.
January 13, 2011
NLRB Considers Jurisdiction Over Charter Schools
The NLRB recently put out a notice asking for briefs regarding the Board's jurisdiction over an Illinois charter school. From the notice:
In the case under review, Chicago Mathematics & Science Academy Charter School, Inc. (13-RM-1768), the Chicago Alliance of Charter Teachers and Staff sought a representation election for the school’s teachers, social workers and counselors through the Illinois Educational Labor Relations Board. The union argued that the state board was the proper authority to conduct the election because the school is a “political subdivision” of the state, and so is exempt from the Board’s jurisdiction. However, the School maintains that it is not a political subdivision of the state, and therefore the NLRB should conduct the election.
Section 2(2) of the National Labor Relations Act exempts government entities or wholly owned government corporations from its coverage. Following the test described by the Supreme Court in NLRB v. Natural Gas Utility District of Hawkins County, Tenn., 402 U.S. 600 (1971), the Board has determined that entities are political subdivisions exempt from NLRB jurisdiction, if they are “either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.” State charter school laws vary, and NLRB regional directors have both asserted jurisdiction in some charter school cases and declined it in others. The decision in this case could provide further guidance as to when charter schools fall under NLRB jurisdiction.
It'll be curious to see what the Board does with this. I don't know the area well enough to guess what a more general rule might look like, but it at least appears that they won't just be focused on the facts. Also interesting is the parties' strategy--clearly both believe that the state labor act/board is more favorable to the union than the NLRA/NLRB.
Hat Tip: Patrick Kavanagh
New Comparative Book
Giuseppe Casale, Ed., The Employment Relationship: A Comparative Overview (Hart Publishing 2011). Here's the publisher's description:
The issue of who is or is not in an employment relationship has become problematic in recent decades as a result of major changes in work organization as well as in the adequacy of legal regulation in adapting to such changes. In different parts of the world there is increasing difficulty in establishing whether or not an employment relationship exists in situations where the respective rights and obligations of the parties concerned are not clear, where there has been an attempt to disguise the employment relationship, or where inadequacies or gaps exist in the legal framework or in its interpretation or application. Vulnerable workers appear to suffer most in these situations. At the same time, social partners and labour administrators have emphasized that globalization has increased the need for protection against circumvention of national labour legislation by contractual and/or other legal arrangements.
The employment relationship is under ever-closer scrutiny, not only by labour lawyers, but also by workers, employers and the judiciary. Changes in the world of work have modified traditional notions of the employment relationship. These changes in the ‘standard employment relationship’ shape the scope of protection and application of labour legislation and automatically affect the way labour law is implemented.
This book presents the ways the scope of labour legislation applies to the realm of the employment relationship. Terms, notions, definitions, laws and practice in the various regions of the world are herein reported.
Documentary-in-Progress re: Workplace Safety
Cost of Construction is a documentary film uncovering a national scandal, where the race for profits trumped the safety of American workers while the country’s top safety agency failed to enforce their own regulations - all during the most expensive commercial construction project in the United States.
It's worth checking out.
January 12, 2011
Researching Arbitral Awards
January 11, 2011
IRS Case to Affect Labor Law?
Mitch Rubenstein at Adjunct Law Prof Blog has a post on a recent IRS case in which the Supreme Court held that medical residents must pay employee payroll taxes. This ruling is consistent with the NLRB's conclusion in Boston Medical that residents are employees. However, as Mitch discusses, this tax case could have an effect on other types of quasi-students, such as graduate students--just in time for the Board's reconsideration of its Brown University case.
Achy Breaky ADEA Suit
Billy Ray Cyrus' former road and farm manager has just sued the country singer and his wife for age discrimination. The plaintiff alleges that Cyrus told him that he was “old and dumb and don’t know anything about running a farm.” No doubt there will be more to come on this later.
Hat Tip: Jessica Van Dyke
New Low in Arbitration Clauses
Rachel Arnow-Richman (Denver) sends us this, via Dan Barnhizer's (Michigan State) post to the Contracts listserv. It is an arbitration "agreement" taped to the front door of a Whataburger. Ellen Dannin (Penn State) adds that the "American Mediation Association" referred to in the "agreement" is really the office of "Robert Smith & Associates", a law firm in Dallas.
Years ago, I argued that the Supreme Court's arbitration jurisprudence would just about let a grocery store compel a customer's arbitration merely by printing an arbitration clause on a grocery receipt. It now appears that we have sunk so low.
Bales and Goff on Applying Twombly and Iqbal to Affirmative Defenses
Melanie A. Goff ( student, Northern Kentucky University - Salmon P. Chase College of Law) and our own Rick Bales (Northern Kentucky University - Salmon P. Chase College of Law) have posted on SSRN their forthcoming piece in the American Journal of Trial Advocacy: A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses.
Here is the abstract:
The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.
As I see it, what's good for the goose, is the good for the gander. From my point of view, and many are of like mind I know, including Rick and his co-author, it would have been better if the case names Twombly and Iqbal just never were.
Update on WARNS Institute
Ariana Levinson writes with an update to the 28th Annual Carl A. Warns, Jr. Labor & Employment Law Institute, which will be held June 23-24, 2011 in Louisville. The theme of the Institute will be Changing Technology and the Impact on Work Law. Presentations on that theme include:
- Invasion of the Social Networks
- Reasonable Expectation of Privacy when using Employer Email
- Technology in Organizing Campaigns
- E-Discovery in Labor and Employment Cases
There will be plenty of other presentations as well, by such luminaries as Craig Becker (NLRB), Christine Cooper (Loyola-Chicago), Rebecca Pallmeyer (N.D. Ill.), Robert Sprague (Wyoming Bus.), and Michael Selmi (GWU).
Hamline Symposium on Disability Discrimination
Hamline Law Review will host its 2011 Symposium on disability discrimination and the changes in the law since the implementation of the Americans with Disabilities Act Amendments Act. The Symposium will be held April 1, 2011, and the proceedngs will be published in 34(3) Hamline Law Review. For more information, contact Symposium Editor Kathryn A. Fodness.
Recently Published Scholarship
- Benjamin I. Sachs, Reinhardt at Work, 120 Yale L.J. 543 (2010).
- Jessica Barclay-Strobel, Shooting the Messenger: How Enforcement of FLSA and ERISA Is Thwarted by Courts' Interpretations of the Statutes' Antiretaliation and Remedies Provisions, 58 UCLA L. Rev. 521 (2010).
January 10, 2011
Waterstone on the Future of Employment Class Actions
Michael Waterstone (Loyola, L.A.) has an interesting post on Wal-Mart v. Dukes on the Loyola Law School faculty blog. Here are some of his thoughts:
[The question of whether a class this big can be maintained] could be transformative within class action law. If plaintiffs are able to demonstrate company-wide policies based on this type of evidence, it could open up the door to larger class actions, and not just necessarily limited to gender discrimination. In the area of disability law, with which I have the greatest familiarity, courts have been quite reluctant to certify employment discrimination class actions. Part of this is based on the view that people with various disabilities have individualized conditions and employment experiences that cannot be aggregated under the commonality and typicality prongs of the class action analysis. Although Dukes does not directly address this, the recent American with Disabilities Amendments Act may make it more likely that increased numbers of individuals will be viewed by courts as having a disability under the ADA.
But if the Court allows the commonality and typicality prongs to be met in Dukes, one could envision an enterprising plaintiff's lawyer showing a dearth of hiring or advancement of employees with disabilities, anecdotal evidence of disability discrimination, and decentralized and subjective decision making creating the potential for bias. This could provide a jumpstart to disability discrimination employment class actions, and could reinforce an idea that I have discussed elsewhere--that it is the shared stigma of the disability classification and the employer's response to disability that can serve to bind together members of the class.
You'll have to read the whole thing to see Michael's predictions on the outcome at the Supreme Court.
Panel on Paid Leave in California
The Center for Economic and Policy Research is hosting a panel on paid leave, entitled, Leaves That Pay: Employer and Worker Experiences with Paid Family Leave in California, on Thursday, January 13 at 12:30 Eastern time at the Center for American Progress Action Fund in Washington D.C. From the announcement:
More families now have two parents that are full-time workers, making it increasingly important for them to have access to flexible workplace policies. In 2002, California became the first state to implement a paid family leave insurance program, providing workers with paid leave when they have a new child or need to care for a family member with a serious illness. This policy expanded California's temporary disability insurance program that already provided paid leave to seriously ill workers. Please join the Center for American Progress Action Fund and the Center for Economic and Policy Research for a panel that will showcase the first research on the implementation and effectiveness of California's legislation and discuss what impact it will have on national policymaking.
A light lunch will be served at 12:00 p.m. Please RSVP to attend this event.
Congressman Pete Stark (CA-13)
* Eileen Appelbaum, Senior Economist, Center for Economic and Policy Research
* Netsy Firestein, Founder and Director, Labor Project for Working Families
* Ruth Milkman, Professor, CUNY Graduate Center; Academic Director, CUNY's Murphy Labor Institute
* Ann O'Leary, Senior Fellow, Center for American Progress Action Fund
* Kaelan Richards, Press Secretary, Office of Congresswoman Rosa DeLauro
Heather Boushey, Senior Economist, Center for American Progress Action Fund
If you are interested in this topic and would like to watch the panel or learn more about the research, the panel will be streamed live here. I'll likely be tuning in to learn more.
It Pays to Flex
Steven Greenhouse (New York Times) had an article this weekend describing how a number of the top national accounting firms have adopted strong flex-time policies for its workers, including those moving up to partner. The big reason for this trend: it pays. The firms, which know a little something about calculating costs and benefits, figured out that it costs a lot more to hire and train new employees than to allow parental or other types of leave for good employees they already have.
An AALS Sonnet, AALS Shame, and Other Thoughts from the SF Hilton Picket Line
Given the charge of reflexive moral exhibitionism by James Young on Rick's post this past Friday on the picketing by law professors and others at the San Francisco Hilton during the recent annual meeting of the Assocation of American Law Schools (AALS), I thought rather than answer James directlty, I would try to show some of the emotion and heart on display in solidarity with the Hilton HERE Local 2 hotel workers for obtaining a better contract this past Friday at a rally and on the line.
I thought long and hard about whether to post my AALS Sonnet which I read publicly at the Law and Humanities Section panel on Saturday morning in San Francisco and whether to post Professor Rachel Arnow-Richman's inspiring speech at the rally, but with Rachel's permission, I publish both here. Sure, some like James, will jeer at some ivory-towered-types like us engaging in what they might believe is facile righteous indignation. But I believe all human beings must work hard to develop a space or a place between righteous indignation and shame over not saying anything, and that is what I seek to do in this post. In addition to being real to myself, my hope is that this post also provides a good example for students and others who have read this blog over the years.
An AALS Sonnet
by Professor Paul M. Secunda
I was filled with rage,
Workers' rights a mess,
Professional Progressives against us.
Prager, Hanson, and Olivas
Why is there so little trust?
Lawprofs are human beings too,
Concerned with worker dignity through and through.
Will union rights live to fight another day?
Labor profs ready to walk away.
Full of frustration and distrust,
Thinking of not coming next year, better off.
I am today filled with rage,
But future tomorrows light my way.
Remarks at Local HERE 2 San Francisco Hilton Hotel Rally
by Professor Rachel Arnow-Richman
Friends and Colleagues, Organizers and Workers, I am so honored to stand before you today.
My awe and appreciation for everything you have done has deepened (as has my faith in your ultimate success) each day that I myself have worked to try to relocate this conference.
And let me tell you why.
First the good news – through the hard work of the people like Karl Klare, Gary Peller, Riddhi Mehta-Neugebauer, and David Harlan, over 2/3 of the AALS conference has been relocated out of the Hilton!
Next the bad news – In the course of trying to achieve this result, we have seen AALS engage in depressingly familiar tactics: Beginning with stonewalling, delay, replacing principled faculty who refused to appear in the Hilton with other speakers. Do you recognize any of these moves?
These tactics – straight out of the anti-union management playbook – culminated last night in a refusal to adopt a non-binding resolution asking AALS to do more next time to avoid siting a hotel in the midst of an active labor dispute. What was their rationale? That it would impair their “organizational flexibility” and cost millions of dollars that would ultimately come out of our pockets as dues-paying members.
This response has been the cause of tremendous frustration and indignation for principled faculty. But luckily for us AALS is not our employer.
Imagine for just a moment that these games were being played not by a professional society with whom we voluntarily affiliate, but by the company who paid our salaries, a company that had the right to set the terms and conditions of our employment, to terminate us at will.
If you can imagine that and imagine the courage it would take to be as outspoken as we have been in those circumstances, then you begin to imagine the circumstances under which Local 2 is waging its battle.
And you might also come to appreciate the importance of our role as faculty in that struggle.
You the professors have a special duty to stand up for these brave workers. Not only are we as faculty committed professionally (through our research and teaching) to the cause of justice, but we enjoy a freedom of speech, a security in our employment, and a voice in the governance of our workplaces that is unheard of in the contemporary economy. If those of us who enjoy the privileges and security of academic employment don’t speak out on behalf of these workers who will?
So I call on all of the law professors to honor this boycott and to stand in solidarity with these incredibly brave women and men of Unite/HERE! Local 2.
Public Pension Rhetoric
Rick Hills has a nice post over at PrawfsBlawg on the rhetoric against public employee pensions (which we recently mentioned here). Among other things, he argues that if conservatives take the contract clause seriously (which generally they do), they should give pensions obligations created by collective bargaining agreements the same deference given to publicly issued bonds.
Check out Rick's entire post -- it's well worth reading.
Discriminatory Discipline for Using the N-Word
Peter Thompson's Maine Employment Lawyer's Blog and Michael Fox's Jottings by an Employer's Lawyer both have excellent posts on a case raising the issue of whether an employer can fire a white employee for using the n-word if it lets black employees say it. The court in Burlington v. News Corp. (E.D. Pa.) denied the employer's motion for summary judgment and sent the issue to a jury.