June 18, 2011
NLRB Solicits Amicus Briefs on Class-Action Waivers
Did the respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?
The deadline to file briefs with the Board is July 20, 2011.
Case information and documents, and more information on the solicitation, are available here.
Hat tip: Nick Ohanesian.
I love it.
Pandya on Stealth Judicial Lawmaking
Sachin Pandya (Connecticut) has just posted on SSRN his article (forthcoming Berkeley JELL) Detecting the Stealth Erosion of Precedent: Affirmative Action after Ricci. Here's the abstract:
This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title VII to permit employers to consider race or sex in employment decisions pursuant to affirmative action plans. In so doing, the paper contributes to research on the stare-decisis norm, fills a gap in the growing literature on the Ricci case, and identifies a critical development in the judicial treatment of employer affirmative action plans in the United States.
June 17, 2011
On Friday, the House Committee on Government and Oversight held its hearing in South Carolina over the NLRB's complaint against Boeing. Acting General Counsel Lafe Solomon was among those who testified and, he stressed the need to protect ongoing litigation. Also, according to the NLRB's press release:
The Acting General Counsel also described the Agency’s investigative process, and his attempts to facilitate a settlement before the complaint was issued. He said, “The issuance of the complaint was not intended to harm the workers of South Carolina, but rather, to protect the rights of workers, regardless of where they are employed, to engage in activities protected by the National Labor Relations Act, without fearing discrimination. Boeing has every right to manufacture planes in South Carolina, or anywhere else, for that matter, as long as those decisions are based on legitimate business considerations.”
You can get the list of witnesses and most of their written statements here.
Hat TIp: Patrick Kavanagh
June 15, 2011
Stone on Publicity as a Mechanism of Social Change
Kerri Stone (Florida International) has a very thought provoking post at PrawfsBlawg about employment discrimination and the power of publicity. She recounts a story from Long Island that began as a letter and a post on one woman's blog, a post about the harassment and constructive discharge of a gay employee at a Long Island Starbucks she witnessed. The post went viral, and Starbucks has pledged to investigate and take any steps necessary to remedy the problem.
The statements of the supervisor and other employees who participated in the incident focused on their hostility to his openness about being gay and who he was dating. If this employee lived in most other states, he could try to make a claim under Title VII, that his supervisor objected to his conduct only because he was male--that a woman who dated men would not have been subject to harassment and discharge. These cases are challenging, though, given the reluctance of courts to allow Title VII to be construed to protect on the basis of sexual orientation. (For example, see Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006). New York, though, makes this case easier by prohibiting discrimination on the basis of sexual orientation as well, so that it will not be as difficult for him to demonstrate that he was harassed because of his protected status.
Kerri's point in her post (you should read the whole thing) focused on the power of public scrutiny to make change. I wholeheartedly agree (and have said so here and here, and will say so again soon at least a couple more times). No matter what the cause of discrimination -- animus, intolerance, ignorance, implicit biases -- shining a light on the behavior is one of the things, sometimes the only thing, that can shift the underlying attitudes that caused the person to act. If only we could provide this kind of scrutiny more often in a way that doesn't simply get lost in all of the noise out there from the 24-hour news cycle and social media.
Herbert on Public Sector Labor History
Bill Herbert has just posted on SSRN his new article, "Public Sector Labor Law and History: The Politics of Ancient History?", which will be published in the Hofstra Labor and Employment Law Journal. The abstract:
This article discuss three books that address various aspects of public sector labor history. It seeks to contextualize the current debate over public sector labor law and relations through the lessons of relevant history. The first book discussed is entitled The Man Who Saved New York: Hugh Carey and the Great Fiscal Crisis of 1975, by Seymour P. Lachman and Robert Polner. It recounts the leadership of Governor Carey and public sector labor leaders in reaching negotiated solutions through collective bargaining that helped solve New York City's fiscal crisis in 1975. The second book is a long-forgotten 1948 treatise Government as Employer by Sterling D. Spero, published at the dawn of public sector collective bargaining in the United States. Unlike most histories of American labor, Spero's book focuses on the public sector, providing an important antidote to the dominance of the private sector narrative in United States labor historiography. The final book examined is a labor history published last year: There is Power in a Union: The Epic Story of Labor in America by Philip Dray. Dray's book presents an episodic labor history of America's private sector from the rise of industrialization to today, which touches upon certain events in public sector labor history.
Looks like an invaluable piece given the current news, including what came out of Wisconsin yesterday.
June 14, 2011
Wisconsin Supreme Court Upholds Anti-Public Collective Bargaining Law
Today, the Wisconsin Supreme Court upheld the state's anti-public collective bargaining law in a 4-3 decision, split along party lines. The majority held, among other things, that courts had no power to enjoin the publication of a law. More curious (to me at least) is a holding that apparently says that it's OK that the legislature did not follow the open meetings law's 24-hour notice requirement because courts won't determine whether the legislature has complied with procedural statutes. This was made on a separation of powers argument. I don't know this area of the law well, but wonder if that's a typical holding in most states. There was also two dissents, include a strong one by Chief Justice Abrahamson, who particularly went after a concurrence written by Justice Prosser--whose reelection was almost undone by the political storms surrounding this issue.
I suspect this isn't the last we hear of this issue in Wisconsin, but for now, the Republicans and Gov. Walker definitely achieved a win.
June 13, 2011
Domestic Workers Bill of Rights Approved by California State Assembly
California may be the second state to enact the Domestic Workers Bill of Rights. The state assembly earlier this month approved legislation to extend wage and hour protection along with other rights to those who work in private homes. According to the San Francisco Chronicle, the vote was close and may be linked to legislation to protect hotel workers.
The bill is being hailed by immigrant and labor groups as victory. From the Pilipino Workers' Center of Southern California,
The California Assembly approved AB 889 . . . the Domestic Workers Bill of Rights, sponsored by Assemblymembers Tom Ammiano (D-San Francisco) and V.M. Pérez (D-Coachella) passed. The bill now heads to the Senate for approval. Co-sponsored by Assemblymembers Allen (D- Sonoma), Cedillo (D- LA), Ma (D- San Francisco), Monning (D- Carmel) and Senator De Léon , the bill would improve the quality of care for children, families and seniors by expanding basic labor protections for household workers and setting industry-wide standards. While current exclusions for domestic workers are confusing and leave well-meaning employers vulnerable to liability, the standards AB 889 provides will create clarity and strengthen an industry which is vital to many Californians.
“Today’s vote was a historic step forward for the rights of domestic workers in California. For decades domestic work has been excluded from both state and federal labor laws and worker exploitation in this industry has remained invisible and unmonitored. AB 889 will end that by establishing the same basic protections under the law that many of us take for granted,” said Ammiano.
“This legislation helps us to bring a critical workforce out of the shadows and into the light of day. Domestic workers must be assured the rights and protections that all California workers deserve,” said V. Manuel Pérez, chair of the Assembly Committee on Jobs, Economic Development, and the Economy.
The legislative session ends in early September, so we'll know fairly shortly if this is headed to Governor Brown's desk.
A Little More on Class Actions While We're Waiting for Dukes....
I wanted to put in a plug for a recent article on class actions by Charlotte Alexander. Would an Opt In Requirement Fix the Class Action Settlement: Evidence from the Fair Labor Standards Act, 80 Miss. L. J. 443 (2010), looks at "collective actions" under the FLSA to assess what might happen were Rule 23 to be amended to require opt in.
One of the recurrent criticisms of 23(b)(3) class action law suits is the amount paid to attorneys as fees in comparison to what the plaintiffs recover. Professor Alexander argues, critics attribute this outcome to either strike suits or sweetheart deals. In a strike suit, the attorney brings weak claims, resulting in minimal recovery for the class. In a sweetheart deal, the attorney brings a strong claim, but “sells out” for the class members for higher fees, again leaving the plaintiffs with a relatively low monetary recovery. In both situations, the plaintiffs are not actively involved in litigation while the attorney acts as a "self-interested fee-maximizer."
One way to address these outcomes, so it is argued, is requiring plaintiffs to affirmatively opt in to a (b)(3) class action suit. Theoretically, plaintiffs would be disinclined to join meritless suits (making strike suits less likely). And opting in would create an identifiable group of plaintiffs who more inclined to monitor the settlement process and therefore guard against sweetheart deals.
That's theory. Charlotte takes an empirical approach to what might be viewed as a natural experiment in opt-in litigation -- collective actions under the FLSA. If the theory's correct, opt in should filter out weak claims and increase plaintiff’s' control over attorney decisions, thus decreasing the ratio of fees to class recovery.
You'll have to read the article to get the full flavor, but it computes a recovery-loss ratio (what plaintiff recovered to what plaintiff claims to have lost) and reports that such ratios in (b)(3) class action suits are rarely more than 25%. If the reformers are correct, requiring opt in would improve the ratio, However, looking at five years of data from a district court, Charlotte reports that median recovery-loss ratio for FLSA collective actions was 28%. This suggests that the opt in requirement in FLSA suits is neither acting as a merits filter nor producing effective monitoring of attorneys.
Other findings are equally provocative. Plaintiffs opt in at rates ranging from 0-48% with a median of 15% in FLSA suits. This could indicate all the suits are strike suits, which is wildly unlikely. Further, the study suggests that opting in fails to produce the effective attorney monitoring that reformers predict. Prior studies find that the fee-settlement ratio in (b)(3) class action suits ranges from 7% to 1050%, with an aggregate median and mean of 30% and 32% respectively. Higher ratios, by hypothesis, are more likely to represent sweetheart deals. But for opt-in FLSA suits, the range of fee-settlement ratio is 0% to 97%, with a median of 50%.
Of course, the low opt in rate in FLSA might be caused by factors unique to the wage-and-hours context, which might explain both the low recovery-loss ration and the high fee-settlement ratio; so it does not follow that the experience for wage and hour claims is transplantable to Rule 23 class actions in general, but the article is certainly very suggestive and greatly contributes to the ongoing debate.
Thanks to Jinkal Pujara.
Maine Anti-Union Efforts
Although it hasn’t gotten the attention of other states, there’s been some interesting labor law disputes in Maine recently. The fight has largely been over Republican Gov. Le Page’s attempts to pass right-to-work bills. A private sector right-to-work bill was recently tabled. However, more pressure was made to enact a public sector bill that would eliminate the state’s current “fair share” provision. Fair share requires non-union public employees to pay a fee ($6/paycheck) to cover the state union’s collective bargaining and grievance representation costs, which the union has to provide to all employees. After significant opposition, including hundreds of union members protesting in the halls of House, Republicans tabled the bill for at least a year.
It’s obviously unclear what will happen next year, but the labor movement is sure to be happy that they have achieved success in fully knocking down an anti-union bill . . . at least one year.
Hat Tip: Michael Duff
Feuer on ERISA Disclaimers
Albert Feuer, who may be the leading expert on the Supreme Court’s take on ERISA disclaimers, has just posted his most recent article, “The Kennedy Supreme Court Giveth with Footnote 13, But Taketh with Footnote 10: The Department of Labor and Many Lower Courts Miss the Decision's Ultimate Meaning,” which will appear in the Compensation Planning Journal The abstract:
In Kennedy v. Plan Administrator of the Du Pont Savings and Investment Plan (“Kennedy Decision”) the U.S. Supreme Court unanimously held that an ERISA plan, was not required to pay the participant’s death benefits to his contingent beneficiary, even though the participant's primary beneficiary, who was his former spouse, had waived her interest in those benefits in their divorce decree. The Court based its holding that the waiver could not be enforced against the former spouse on the failure of the waiver to comply with the terms and conditions of the governing documents of the ERISA plan.
Two of the Supreme Court footnotes created considerable confusion about the application of the Kennedy decision by making it difficult for the former spouses in these circumstances to be paid or to keep the death benefits.
In footnote 13 the Court declared it was not deciding whether a voluntary waiver by a participant’s former spouse of ERISA plan benefits in the order of their marital dissolution would be effective if the plan had no provisions permitting the former spouse to waive benefit entitlements. In footnote 10 the Court declared it was not deciding whether a waiver of ERISA plan benefits by a participant’s former spouse, in the order of their marital dissolution, deprives the former spouse of the right to keep the participant’s death benefits he or she may receive as the participant’s designee pursuant to the terms of such a plan.
The lower courts and the U.S. Department of Labor have used Footnote 13 to determine that spousal waivers in orders of marital dissolutions must be disregarded even if the governing documents of an ERISA plans do not provide for any non-statutory disclaimers. However, it is most consistent with footnote 13, and the emphasis the Kennedy Decision places on the substantial burden that would be imposed on beneficiaries who may not disclaim benefits, to find that the general Kennedy disregard of spousal disclaimers in orders of martial dissolution is inapplicable in such cases. It would thus not be surprising if the holdings become more confusing as future courts, unlike the initial courts, defer more to the thrust of the Kennedy decision and prevent such former spouses from receiving benefit distributions.
Former spouses, who made common-law disclaimers, but claimed benefits as designees, may find their victories against the plans rather ephemeral. Footnote 10 suggests that the Supreme Court may reverse its holdings in Boggs v. Boggs or Egelhoff v. Egelhoff that ERISA protects the right of beneficiaries to retain the ERISA benefits to which they are entitled and which they have received. However, the lower courts have again failed to provide good reasons for the Supreme Court to reverse itself. Thus, again confusion may result as some but not all decide to give more deference to the actual Supreme Court decisions rather than a reversal that may occur in the future.
Check it out.
New Book: Regulating for Decent Work
The Regulating for Decent Work Network has just published Regulating for Decent Work: New Directions in Labour Market Regulation, edited by Sangheon Lee (International Labour Office) and Deirdre McCann (University of Manchester) (Palgrave/ILO 2011).
The book is the first edited volume from the work of the Network. It is drawn from contributions to the inaugural RDW Conference, which was held at the International Labour Office, Geneva in July 2009.
Here's information on the 2nd Conference on Regulating for Decent Work: Regulating for a Fair Recovery (RDW), 6-8 July 2011
June 12, 2011
Slater on Public-Sector Union Bashing
Joe Slater (Toledo) has written an “Issue Brief” for the American Constitution Society on the attacks on public sector bargaining rights. It's The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits. Here's an excerpt:
Perhaps the most striking political development in 2011 is the widespread and aggressive
assault on public sector collective bargaining rights. While the most highly publicized and most significant changes have taken place in Wisconsin and Ohio, moves are afoot in a number of states. These changes represent the most radical revisions to labor law in the U.S. in decades, and they have set off a political firestorm.
This brief will argue that these attacks are deeply misguided. They serve no purpose beyond a partisan attempt to weaken a key supporter of the Democratic party and they do not address budget deficits. Instead, they take away a core right that has been recognized in the vast majority of the United States for up to half a century, a right that is considered fundamental in much of the industrialized world, a right that helps individual teachers, firefighters, police officers, and other public employees in their day-to-day lives at the workplace, a right that helps sustain a vital middle class, and a right that helps ensure talented and skilled people will find public service an attractive career option.