June 3, 2011
May Unemployment Report
The DOL has released its unemployment report for May and it's pretty tepid. Only 54,000 jobs were added, far less than the 200,000+ additional jobs we've seen the last several months. The unemployment rate went up to 9.1%, from last month's 9.0%. Some of the fall off may be because of things such as the Japanese tsunami and higher oil prices, but it's still not good news for the recovery.
Is Leave a Reasonable Accommodation?
The EEOC will hold a public meeting on Wednesday, June 8, at agency headquarters, 131 M Street, N.E., to examine the use of leave as a reasonable accommodation. The meeting is open for public observation of the Commission’s deliberations. At the meeting, the Commission will hear from invited panelists on the appropriate use of disability leave as a reasonable accommodation and on complying with relevant regulations.
TN Replaces Teachers' Collective Bargaining with "Collaborative Conferencing"
Today's DLR reports that the Tennessee governor has signed into law a bill that replaces collective bargaining for teachers with "collaborative conferencing". It also specifies that teachers will be "represented" by groups that receive 15% or more of votes in a confidential poll, rather than a particular union or recognized professional employees' association.
Anyone have any idea about the origins or motive behind the 15% rule? Is this a naked attempt to weaken the state teachers' union?
Hat tip: Dennis Nolan.
Fisk Testifies to House Subcommittee on Corporate Campaigns
Congratulations to Catherine Fisk (Irvine) who just tesitified before the House Subcommittee on Helath, Employment, Labor, & Pensions in a hearing on Corporate Campaigns and the NLRB: The Impact of Union Pressure on Job Creation. Hat tip: Charlotte Garden.
June 2, 2011
Onwuachi-Willig and Greene cited by Chicago Comm'n on Human Relations
Congratulations to Angela Onwuachi-Willig (Iowa) and Wendy Greene (Cumberland), whose articles were cited by the Chicago Commission on Human Rights in two public accommodations race discrimination cases: Scott v. Owner of Club 720 and Lyke v. Owner of Club 720, which you can download from here to read. The two men were barred from a club because of their braided hairstyles, and the Commission found that a policy banning braids was discrimination on the basis of race in part because braided hairstyles are so closely assocated with African Americans, and there was no rational reason to distinguish the wearers of that hairstyle from any other for purposes of entry into a place of public accommodation.
Angela's article was, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Georgetown L.J. 1080 (2010), and Wendy's was Title VII: What's Hair (and other Race Based Characteristics) Got to Do with It?, 79 Univ. Colo. L. Rev. 1355 (2008).
Despite popular opinion that law profs tend to write only for each other, most of us write because we think it will be useful out in the world, and it's especially gratifying ot get cited in cases. Congratulations to both Angela and Wendy!
Wisconsin Court Transfers Employment Case to Tribal Court
Thanks to Matthew Fletcher (Michigan State) at Turtle Talk for sending a link to this interesting case. A corporation owned by a Native American tribe fired its CEO, who was not himself a member of the tribe. He sued the tribe in state court for breach of a purported employment contract. The tribe moved to transfer the case to a tribal court pursuant to a Wisconsin statute giving trial courts the discretion to order such a transfer if the tribal court has concurrent jurisdiction. The trial court granted the motion, and the Wisconsin Court of Appeals affirmed.
The case is Kroner v. Oneida Seven Generations Corp.
June 1, 2011
Glynn on FLSA Enforcement
Tim Glynn (Seton Hall) has just posted on SSRN his article (forthcoming EREPJ) Taking the Employer Out of Employment Law? Accountability for Wage and Hour Violations in an Age of Enterprise Disaggregation. Here's the abstract:
Violations of wage and hour mandates are widespread at the low end of the labor market. The disaggregation of business enterprises into smaller, independent parts has been an important factor in this growing problem. Limitations on liability for work-law violations invite such arrangements since statutory protections for workers usually impose duties only on “employers.” That status, in turn, hinges on the level of control a firm exercises over the work, and when exacting control is not necessary, firms usually can avoid accountability by shifting work to independent third-party suppliers. This creates severe enforcement obstacles: detection becomes difficult, labor suppliers often are undercapitalized, and coverage uncertainties lead to unprosecuted claims and discounted settlements. Thus, disaggregation does far more than shift legal responsibility from one entity to another: it allows end-user firms to avoid noncompliance risks while benefiting from labor at a price discounted by the unlikelihood of enforcement.
May 31, 2011
DOL Decision Expands SOX Whistleblower Protection
The Administrative Review Board of the Department of Labor has significantly broadened the scope of whistle blower protection under SOX in Sylvester v. Parexel. As scholars have noted, few SOX whistle blowers had previously prevailed at the ARB due its prior narrow interpretation of the law. The ARB held that 1) The heightened pleading standards of Federal Courts (Iqbal and Twombley) do not apply to SOX claims 2) the Complainant need only express a "reasonable belief" of a SOX violation to engage in protected activity (with an accompanying less rigorous test for such reasonable belief) 3) protected activity need not describe an actual violation of law 4) the "definitive and specific" evidentiary standard of Platone applied in prior ARB decisions is not appropriate 5) SOX complaints do not have to relate to fraud against shareholders and 6) a SOX complaint need not establish criminal fraud to prevail on a retaliation claim. This same dispute previously produced the Parexel NLRB decision (356 NLRB No. 82) which significantly expanded protected, concerted activity under Section 7 of the Act.
Hat tip: Pat McDermott (Salisbury), who served as counsel-of-record for Complainants.
Work as Art
The Massachusetts Museum of Contemporary Art (MASS MoCA) just opened an exhibit called The Workers. Here's a description:
[W]hat does work look like today in a global economy marked by outsourcing, rapid migration, disruptive economies, and a state of labor that seems fractured, precarious, and almost invisible? With video, sculpture, photography, and performance art from 25 artists, this exhibition examines the way labor is represented today (and how some contemporary workers choose to represent themselves).
Hat tip: Bill Herbert.
Recently Published Scholarship
- Charlotte Garden, Labor Values are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, 79 Fordham L. Rev. 2617 (2011).
- Jessica L. Roberts, The Genetic Information Nondiscrimination Act as an Antidiscrimination Law, 86 Notre Dame L. Rev. 597 (2011).
- Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm & Mary L. Rev. 1483 (2011).
- Robert N. Wilkey, The Non-Negotiable Employment Contract -- Diagnosing the Employment Rights of Medical Residents, 44 Creighton L. Rev. 705 (2011).
- R. George Wright, Retaliation and the Rule of Law in Today's Workplace, 44 Creighton L. Rev. 749 (2011).
- Shannon K. Stevens, Baseball's DNA Testing Policy Strikes Out: Genetic Discrimination in Major League Baseball, 41 Seton Hall L. Rev. 813 (2011).
May 29, 2011
Recently Published Scholarship: FIU Symposium on NLRA
- R. Alexander Acosta, Rebuilding the Board: An Argument for Structural Change, Over Policy Prescriptions, at the NLRB, p. 347.
- Samuel Estreicher, Improving the Administration of the National Labor Relations Act Without Statutory Change, p. 361.
- Paul M. Secunda, The Contemporary 'Fist Inside the Velvet Glove': Employer Captive Audience Meetings Under the NLRA, p. 385.
- Jeffrey S. Lubbers, "The Potential of Rulemaking by the NLRB," p. 411.
- Jeffrey M. Hirsch, Defending the NLRB: Improving the Agency's Success in the Federal Courts of Appeals, p. 437.
- Thomas W. Brudney, Victims on Trial? A Backpay Case at the NLRB, p. 465.
- Anne Marie Lofaso, The Vanishing Employee: Putting the Autonomous Dignified Union Worker Back to Work, p. 495.
- Jennifer Hill, Can Unions Use Worker Center Strategies? In an Age of Doing More With Less, Unions Should Consider Thinking Locally But Acting Globally, p. 551.
- Catherine L. Fisk, The Role of the Judiciary When the Agency Confirmation Process Stalls: Thoughts on the Two-Member NLRB and the Questions the Supreme Court Should Have, But Didn't, Address in New Process Steel, L.P. v. NLRB, p. 593.
- Matthew T. Bodie, "Mandatory Disclosure in the Market for Union Representation," p. 617.
- James J. Brudney, Private Injuries, Public Policies: Adjusting the NLRB's Approach to Backpay Remedies, p. 645.
- Michael C. Harper, A New Board Policy on Deferral to Arbitration: Acknowledging and Delimiting Union Waiver of Employee Statutory Rights, p. 685.
- John Sanchez, Two Is Company but Is It a Quorum? p. 715.
- Dennis P. Walsh, Two Is Company and Two Can Be a Quorum: A Reply to Professor Sanchez, p. 739.