Friday, June 24, 2011

More Commentary on Wal-Mart

Scotus Great commentary on Wal-Mart continues to be posted. Check out this contribution by Michael Waterstone (Loyola). He has some excellent points, including this one,

an important undercurrent is the divergent views on the role of employment discrimination and the acknowledgement of unconscious bias. Justice Ginsberg explicitly acknowledges unconscious discrimination and stigma as providing the glue to allow widespread discretion to open the door for company-wide bias ("The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware"). Justice Scalia, on the other hand, seems unwilling to move beyond anything less than a formal policy of discrimination on a group-wide basis, suggesting that managers will generally follow policies and not discriminate ("Surely most managers in a corporation that forbids sex discrimination would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.").

Read the whole thing for more!


June 24, 2011 in Commentary, Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Thursday, June 23, 2011

Concepcion Applied to Students' Claims Against College

Employmentpledge The Chronicle of Higher Education (subscription required), via Mark Giagrande (DePaul) at Law Librarian Blog, describes a very recent application of the Concepcion case.

Students in Colorado sued Westwood College for misrepresenting its tuition costs, accreditation status, and job prospects for graduates.  The school, however, had placed an arbitration clause in its enrollment documents.  The school moved to dismiss the case and compel arbitration.  The court granted the motion, saying:

There is no doubt that Concepcion was a serious blow to consumer class actions and likely foreclosed the possibility of any recovery for many wronged individuals. The dissent in Concepcion recognized the impact of the majority's decision and argued that it would effectively end the ability to prosecute small-dollar claims and that those claims would slip through the legal system. Id. at 1761. Countering this argument, the majority wrote: “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753. Thus, the Supreme Court considered the fact that the Concepcions and other class plaintiffs would be denied any recovery by its ruling, and ruled against the class plaintiffs nonetheless. The Court is bound by this ruling and, therefore, cannot be persuaded in this case by the fact that ordering the parties to arbitration may impact Plaintiffs' ability to recover.

Ultimately, there is no dispute that the agreement to arbitrate was prominently written in the enrollment documents, including an entirely separate document entitled “Agreement to Binding Arbitration and Waiver of Jury Trial”. (ECF No. 15–2.) There is also no evidence that Plaintiffs were subject to significant external pressure driving them to sign the documents without taking time to review them and/or have someone else review them. The Arbitration Agreements here appear to contain relatively standard terms, which would suggest that they are substantively fair. Plaintiffs had to ability to cancel the contracts and receive a substantial refund. Finally, there is a competitive market for education programs such as those offered by Defendants and Plaintiffs could have chosen to pursue their education elsewhere. All of these factors weigh against a finding of unconscionability. (footnotes omitted)

Will law schools, some of which also have been criticized for misrepresenting tuition costs and jplacement statistics, add arbitration and no-class-action clauses to their enrollment documents?

The case is Bernal v. Burnett (D. Colo., June 06, 2011) 2011 WL 2182903.

Here's an interesting addition.  The very first page of the Westwood College webiste contains the following "employment pledge":

We’re so confident that you’ll receive the right skills to launch your career and get your first job that if you haven’t found employment within six months of graduation, we’ll help pay your bills. Simple as that.


Hat tip: Carol Furnish.


June 23, 2011 in Arbitration | Permalink | Comments (0) | TrackBack (0)

NBA Salary-Cap Inequality

Nba Mitchell L. Engler (Cardozo) explains in The Untaxed King of South Beach: Lebron James and the NBA Salary Cap (forthcoming San Diego L. Rev. 2011) the real reason both Miami and Dallas made it to the NBA finals this year: both teams get a competitive advantage by being located in no-income-tax states.  Here's the abstract:

In contrast to major league baseball, the National Basketball Association has a salary cap designed to provide every team an equal and fair chance of competing for the championship. The Miami Heat‘s recent incredible success in signing the game‘s three most hotly desired free agents, including mega-stars Lebron James and Dwyane Wade, therefore flies in the face of the NBA‘s attempted level playing field. How could one team so outmaneuver all the others in the sport which tried to eliminate such uncompetitive results via a salary cap?

As discussed in this Essay, the answer lies in the law of unintended consequences and perverse incentives. Some NBA teams are located in more attractive jurisdictions with nicer amenities or lower costs, such as taxes. In particular, Miami provides a highly-favorable climate both as to weather and taxes as Florida does not have a state income tax. In the absence of any salary cap limitations, teams in higher-tax jurisdictions could compete better with Miami for free agent players by offering higher salaries to offset the extra tax. But the NBA salary cap, by its very terms, blocks this usual free-market response.

Having flagged this perverse and unintended benefit to the no-tax clubs, this Essay then proposes an appropriate solution. Rather than scrapping the salary cap and restoring a competitive advantage to the wealthier clubs, a state tax adjustment to the cap amounts would remove the rich clubs‘ advantage without substituting an unintended benefit to the no-tax clubs. The salary cap amounts of no-tax teams simply should be reduced by a percentage equal to the highest state tax rate of any NBA team. After making this simple adjustment, this Essay then refutes more sophisticated arguments as to why the proposed adjustment might go too far. Among other points, this Essay highlights how Miami‘s tax advantage might extend beyond just Lebron‘s salary to include his extensive endorsement income as well. Expanding the analysis to such deeper level therefore highlights an even greater need for a state tax adjustment to the NBA salary cap.


June 23, 2011 in Wage & Hour | Permalink | Comments (4) | TrackBack (0)

Warns LEL Institute in Louisville

Cardinal I'm attending, today and tomorrow, the 28th Annual Carl A. Warns, Jr., Labor and Employment Law Institute in Louisville.  The title of this year's Institute is Changing Technology and the Impact on Work Law.  I'm particularly looking forward to a workshop on evidentiary issues in employment litigation by Christine Cooper (Loyola-Chicago) and Rebecca Pallmeyer (N.D. Ill.), a view from the Board by Criag Becker (NLRB), e-discovery in employment cases by Andrew Peck (SDNY) et al., and the future of disparate impact by Michael Selmi (GWU).  I'll be giving the last presentation of the conference (late Friday afternoon!) on ethical issues in grievance processing and labor/employment arbitration.


June 23, 2011 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Fora on Wal-Mart Case?

Wm As Marcia pointed out Tuesday, there's been plenty of online commentary on the Wal-Mart v. Dukes case.  Deborah Weiss writes to ask if we know of any conferences, symposia, online events, etc. on the topic of the case.  I don't, but if you do, please add a comment to this post.  If your school's journal hasn't chosen a fall symposium topic, you might send a suggestion to the eic.


June 23, 2011 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 22, 2011

Proposed Union Consultant Rule

DOL Perhaps the Department of Labor doesn't want to be left behind the NLRB and its rulemaking, because the Department has recently proposed a new rule that would make employers disclose more information about their use of union consultants.  Under current regulations, employers only have to report consultants who directly attempt to influence employees, but not those who only give "advice" to employers.  The new rule would limit this advice exception by require disclosure of consultants who give communications to influence employees, even if their is no direct contact between the consultants and employees.  According to the Department's news release:

The U.S. Department of Labor today announced a proposed rule to revise the interpretation of "advice" as it pertains to the employer and labor relations consultant persuader reporting requirements of Section 203 of the Labor-Management Reporting and Disclosure Act. The proposal adopts the plain meaning of the term "advice" as "an oral or written recommendation regarding a decision or course of conduct."

Section 203 of the LMRDA requires the disclosure of agreements or arrangements between employers and labor relations consultants when a consultant undertakes or agrees to undertake activities that seek to directly or indirectly persuade workers concerning whether or not to exercise, or the manner of exercising, their rights to organize and bargain collectively. Neither an employer nor a consultant is required to file a report with the Department of Labor covering the services of a consultant if the consultant is merely giving or agreeing to give advice to the employer.

Under the proposal, an agreement would be reportable in any case where the consultant engages in persuader activities that go beyond the plain meaning of "advice." Reportable persuader activities would include those in which a consultant engages in any actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers concerning their rights to organize and bargain collectively, regardless of whether or not the consultant has direct contact with workers. An agreement also would be reportable in any case in which a consultant engages in specific persuader actions, conduct or communications regardless of whether advice is given, such as when a consultant plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort.

The LMRDA does not regulate the actual persuader activities or statements, and the proposed rule only focuses on whether the activities would have to be publicly disclosed. The current interpretation of "advice" has resulted in significant underreporting of employer and consultant persuader agreements. Better disclosure is critical to helping workers make informed decisions about their right to organize and bargain collectively.

You can see the full proposal here.


June 22, 2011 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

FCA Catch 22

New Image The Supreme Court may have constructed a kind of black hole for some law suits with last month’s Schindler Elevator Corp v. U.S. Ex Rel Kirk. Put together with FRCP Rule 11Schindler may result in an attorney's act of exploring the viability of a potential claim (which Rule 11 would seem to require) simultaneously destroying that claim.   

In brief, the False Claims Act allows employees (among others) to bring suit as "relators" against firms that submit false claims to the government. In Schindler itself, the employer’s contract with the US required it to file reports about its employment of veterans.  Kirk, a former employee, brought an FCA suit alleging that Schindler's claims for payment were false because it had not filed those reports or its filings misrepresented its employment of veterans. But prior to bringing suit, Kirk had his wife request information from the Department of Labor under the Freedom of Information Act.  The responses revealed noncompliance and were one of the bases of Kirk's claim.

This is where an FCA exception enters the picture: A false claims suit can't be based on certain publicly-disclosed information. The relevant language bars suit "based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation." The question before the Court, then, was whether a suit based on an FOIA response would be based on a "administrative . . . report."  And a majority of the Court held yes.  Stressing a broad reading consistent with ordinary meaning of “reports” and no textual basis for a narrower interpretation, the majority held that an FOIA response qualifies; thus, a transaction disclosed in a record attached to an FOIA response is disclosed “in” that response and therefore is disclosed “in” a report for purposes of the public disclosure bar. 

So what’s an attorney to do when considering whether to file an FCA case? Schindler says don’t submit an FOIA request. But Rule 11 would seem to necessitate one where the employee doesn’t have sufficient information to file a complaint. Look at (a)(3), which requires an attorney to certify that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery….” Is a pre-suit investigation “reasonable” if easily available information was not requested because it would destroy the case?   

It is difficult to imagine another situation where diligent investigation simultaneously extinguishes that claim.  Perhaps the singularity of this outcome suggests the majority got its interpretation of the FCA wrong. Or maybe Rule 11 should be read not to view an (otherwise reasonable) investigation as reasonable when doing so would negate the claim.   

Or maybe the word “based” provides an out.  To the extent that Kirk’s FOIA request merely confirmed his previous suspicions, maybe his FCA suit was not so much “based on” the responses as confirmed by them. In other words, when a realtor has his own information without an FOIA request but invokes the statute to further investigate, we could treat his case as not “based upon” his FOIA request and so bypass Schindler

However, attempts to define when a claim is or is not “based upon” a request are hazardous at best and the applicable standard troublingly unclear.  Reasonable suspicion?  Probable cause? Of course, a plaintiff may satisfy Rule 11’s reasonable investigation standard by virtue of his knowledge as an employee or by virtue of investigations outside FOIA requests.  Yet, if he couldn’t bring suit without the information revealed by an FOIA request, wouldn’t it be fair to describe his suit as “based upon” the FOIA response? 

Sure, if Schindler came out the other way, cases based on nothing more than FOIA requests could be a viable FCA claims, and, yes, the purpose of the FCA public disclosure bar – stressed in Schindler – is to discourage entrepreneurial litigation.  But one wonders whether this particular game is worth the candle since Schindler seems destined to result either in more ill-founded suits or more litigation over what a particular suit is based on. Or maybe a third possibility – fewer suits to vindicate the public’s interest in deterring false claims.


Thanks to Kate Stone for helping me on this.

June 22, 2011 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Weiss: Do Noncompetes Enhance, or Stifle, Innovation?

Nca Deborah Weiss (McCombs - Business) has just posted on SSRN her article Entrepreneurial Employees.  She argues that there's not necessarily a binary answer to the question "Are noncompetes good or bad?" -- the answer is nuanced.  Here's the abstract:

Several states including California restrict the ability of employers and employees to agree to post-employment covenants not to compete. Economic theory generally disfavors such restrictions, which may serve to protect various employer investments, However a number of observers have argued that such restrictions have served to create a climate of innovation in California. This paper examines this claim, arguing that most industries benefit from allowing covenants but there are positive effects to barring covenants in a select few industries where small firms innovate. In a federal system, the efficient legal regime is to have most states allow covenants and a few states restrict them. A clientele effect draws industries where small firms innovate to states that bar non-competes. Preliminary data analysis supports this view of the distribution of industries within the United States.


June 22, 2011 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Stephen F. Befort, Unilateral Alteration of PUblic Sector Collective Bargaining Agreements and the Contract Clause, 59 Buffalo L. Rev. 1 (2011).
  • Andrew Stumpff, Darkness at Noon: Judicial Interpretation May Have Made Things Worse for Benefit Plan Participants Under ERISA Than Had the Statute Never Been Enacted, 23 St. Thomas L. Rev. 221 (2011).
  • Debra Burke, Stephen Miller, & Joseph Long, Minimum Wage and Unemployment Rates: A Study of Contiguous Counties, 46 Gonzaga L. Rev. 661 (2010/11).
  • Harry G. Hutchison, Employee "Free" Choice in the Mirror of Liberty, Fairness, and Social Welfare, 60 Catholic U. L. Rev. 575 (2011).



June 22, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 21, 2011

An Alternative Organizing Drive At Wal-Mart

Wal-Mart Given traditional unions' inability to organize Wal-Mart stores (not to mention the recent failure at Target), it's perhaps no surprise that worker advocates are seeking a new avenue to press for change.  As described by Steven Greenhouse, Organization United for Respect at Walmart ("OUR Walmart") is signing up workers to push for better working conditions at Wal-Mart.  The group claims to have thousands of members thus far and will soon have a web site and Facebook page.

Although OUR Walmart will not attempt to bargain on behalf of wokers, it's not a competitor to traditional unionism, however, as UFCW have provided a lot of financial support for the group and gotten members to drum up support among Wal-Mart workers.  Low wages has been the key issue, in addition to benefits and respect at work.

We've seen similar efforts at other companies in the past (including labor-backed groups that have gone after Wal-Mart), and I think we'll continue to see more such efforts given the difficulties in formally organizing workforces.  As I've argued in the past, that's not necessarily a bad thing, as the traditional collective bargaining isn't always the best fit for modern workplaces.

Hat TIp:  Matthew Dimick


June 21, 2011 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Wal-Mart Commentary Roundup

Walmart After yesterday's decision, there have been a bunch of great editorials and commentary by Workplace Profs. Among them, this piece by Nancy Levit (UMKC) and Naomi Cahn (George Washington) in the Huffington Post. The NY Times Room for Debate hosted several great short pieces too. Suzette Malveaux (Catholic) on the backpay issue; Matt Bodie (SLU) on the Court's desire to get employment cases out of the courts; Ralph Richard Banks (Stanford) on group equality; John Elwood (advisor to the SCOTUS Litigation Clinic, Virginia) on why the decision was not surprising; Tanya Hernandez (Fordham) on Wal-Mart being too big to sue; Richard Primus (Michigan) on the Court's push away from a structural view of discrimination; and Melissa Hart (Colorado) on the Court's hostility to discrimination cases.

Nice work and congratulations to all!


June 21, 2011 in Commentary, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Fischl on “Running the Government Like a Business”: Wisconsin and the Assault on Workplace Democracy

Fischl, m. 100x150 02.11 Michael Fischl (UConn has published in the Yale Law Review Online a timely and must-read piece: “Running the Government Like a Business”: Wisconsin and the Assault on Workplace Democracy.

(Michael helpfully points out to those with middle-aged eyes that the downloadable pdf version is infinitely easier to read, though the footnote formatting is not nearly so nifty.)

Michael's fundamental point, with which I wholeheartedly agree, is that, "the stakes in Wisconsin have less to do with the bona fides of budget crises and benefits packages than with something a great deal more fundamental: the struggle between democratic governance and authoritarian control in the American workplace."

Read the whole piece. Well worth the time. I guarantee this: Michael will challenge the way you think about this issue.


June 21, 2011 in Commentary, Labor and Employment News, Pension and Benefits, Public Employment Law | Permalink | Comments (7) | TrackBack (0)

Reminder to Register for Sixth Annual Colloquium on Labor and Employment Law

Conf Michael Waterstone (Loyola-LA), one of the organizers for the Sixth Annual Colloquium on Labor and Employment Law in Los Angeles this year, writes to remind law profs and other interested individuals to register for this year's colloquium.

Here is the link to the registration page.

I would think that with the Wisconsin and Midwest public-sector labor protests, Wal-Mart v. Dukes, new NLRB proposed rules, the new Restatement on Employment Law, and the ever-crazy ERISA landscape, there would be PLENTY for labor and employment law profs to talk/write about this year.

The deadline to register is August 11, 2011, and the reservations deadline for the conference hotel is August 25, 2011.


June 21, 2011 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

NLRB Proposed Election Rules

NLRB The NLRB just announced today that it is published several proposed election rules.  They're potentially a big deal.  The NLRB announcement provides links to the full proposed rules and Chairwoman Leibman's statement (you can also see Steven Greenhouse's take on them in the New York Times here).  The proposals would, according to the Board:

  • Allow for electronic filing of election petitions and other documents.
  • Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
  • Standardize timeframes for parties to resolve or litigate issues before and after elections.
  • Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
  • Defer litigation of most voter eligibility issues until after the election.
  • Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
  • Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
  • Make Board review of post-election decisions discretionary rather than mandatory.

As I've argued before, some of these--like providing email address for the Excelsior list--are no-brainers and shouldn't be controversial (that's "should be" not "won't be").  Others are likely to create more of a fuss, especially given the Boeing case.  The attempt to streamline the election process--pushing challenges to the post-election period is particularly significant--could significantly reduce the critical period after an election petition is filed and the election is held.  This, of course, is the time where employers can aggressively fight the union campaign, often with success.  What's interesting is that the rules could move the Board closer to the "quick election" proposals that came out of the EFCA debate and are used in some provinces in Canada. 

Stay tuned . . . .

Hat tip:  Dennis Walsh


June 21, 2011 in Labor and Employment News, Labor Law | Permalink | Comments (4) | TrackBack (0)

Areheart on Disability as a Social Construct

Are Brad Areheart (Visiting at Stetson) has just posted on SSRN his article (forthcoming Yale Law & Policy Rev.) Disability Trouble.  His topic is dear to my heart -- it's one that I cut my teeth on in one of my first articles, shortly after the ADA became law (dates me, I know).  Here's the abstract:

In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections.

An almost identical binary exists for disability, the disablement/ impairment binary, in which writers characterize disablement as the social construct, and impairment as the disabled person’s body. This disability binary has received sparse critical attention; while few legal scholars have provided ringing endorsements, none have provided a systematic critique of the binary or examined the legal implications attendant to such a critique. Yet, just as with legal scholarship on gender and sex, there are important legal implications to making further sense of the meaning of disability.

In this Article, I make disability trouble by arguing disability is more socially constructed than acknowledged. In particular, and contrary to most literature, I argue that biological impairment is itself a social concept. Initially, I explain how impairment, according to those who coined the disability binary, appears to be little more than diagnosis. From there, I argue, using concrete examples, that both the creation of diagnoses and acts of diagnosis are social processes. Finally, I examine the legal implications of disability trouble.


June 21, 2011 in Disability | Permalink | Comments (0) | TrackBack (0)

Labor's Litigation

Impact Jaime Eagan (JD Harvard 2011) has just posted on SSRN Making an Impact: The Labor Movement's Use of Litigation to Achieve Social and Economic Justice.  It's worth reading.  Here's an excerpt from the abstract:

The image that naturally comes to mind when one thinks of a labor union is that of a bargaining representative and an advocate for wronged union employees – an organization that fights to obtain better wages and working conditions for employees than they could negotiate on their own, and that represents employees in any grievances with their employer....  However, unions have increasingly embraced the role of an advocate for workers generally, often partnering with other organizations and social movements, and have engaged in political activity to address social and economic concerns of broad constituencies – union members and non-members alike.... From mass tort litigation, to election and voter registration challenges, to education financing scheme cases, unions have demonstrated their commitment to the American working class as a whole. Although some examples of such impact litigation arise out of workplace conditions – such as union involvement in asbestos litigation and repetitive stress injury product liability lawsuits – other examples of union impact litigation are seemingly unconnected to the workplace – such as challenges to immigration laws that seem to promote racial profiling and challenges to voter registration restrictions that disenfranchise working-class voters....  This paper will examine the various conceptions of labor unions and discuss union involvement in impact litigation demonstrate yet another way that unions behave as social actors invested in the betterment of the working class as a whole.


June 21, 2011 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, June 20, 2011

Dukes and Duryea: Bad Day at the Supreme Court for Public and Private Employees in US

4United States Supreme Court 112904 Marcia has already provided the syllabus for the Court's decision in Wal-Mart v. Dukes below and has given her comments. Here are mine: predictable outcome and unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers.

Plaintiffs lost 9-0 on the injunctive 23(b)(2) action, but even more troubling, Scalia and friends make the Rule 23(a)(2) commonality question akin to the higher showing required for the predominance inquiry under (b)(3).

Scalia's majority opinion strikes me as purposely obtuse, as if to say, "I don't get what the dissent and plaintiffs are even talking about in this case." Furthermore, Scalia goes out of his way to both ignore, and be rude to, Bill Bielby, the sociologist who supplied the social framework evidence to show commonality in the plaintiffs' claims. 

On a personal note, Scalia cites Monahan et al.'s Virginia Law Review's piece against using social framework evidence without even mentioning that there was substantial scholarly disagreement over social framework evidence's use in the class-action employee discrimination context.  I alas was also disappointed that Ginsberg's partial dissent did not engage on the social framework issue and, of course, failed to mention the agruments that Melissa Hart and I discussed in our Fordham Law Review piece from 2009 (which, BTW, was cited by both the majority and dissent in the 9th Circuit's en banc decision).

As for public employees, the less known case today of Borough of Duryea v. Guarnieri (US 06/20/2011), found that a public employee petitioning the government under the First Amendment must meet the "matter of public concern" test from public employee free speech law (i.e., Connick v. Myers). In a largely uncontoversial decision, the Court held, 7-1-1, that, "a government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern. The Third Circuit’s conclusion that the public concern test does not limit public employees’ Petition Clause claims is incorrect."

I am not surprised that the Court has come to this conclusion given the current Pickering-Connick-Garcetti framework for public employees in the US under the First Amendment.  I guess I was hoping that in discussing this related Petition Clause claim one of the more progressive members of the court would pick up the thread of the argument that I and others have been making in various articles that the current framework for public employee free speech does not take seriously the speech rights of public employees and makes it nearly impossible for public enmployees to hold government accountable and transparent by being the "vanguard of the citizenry."

In short, bad day for most employees in the United States both under federal constitutional and statutory workplace law.


June 20, 2011 in Employment Discrimination, Public Employment Law | Permalink | Comments (1) | TrackBack (0)

Win for Wal-Mart in Dukes Case

Scotus The Supreme Court issued it's opinion today in Wal-Mart v. Dukes, the big class action gender discrimination case, and it's not entirely surprising that the Court reversed the Ninth Circuit's certification of the class. All nine of the justices disagreed that the class could be certified under 23(b)(3), which allows a class to be certified if the class is seeking injunctive relief unless monetary claims of the class members would predominate. On the question of certification under 23(a)(2), the split was 5-4 on the lines we've come to expect. Here's the syllabus:

1. The certification of the plaintiff class  was not consistent with Rule 23(a).  Pp. 8–20.

(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or  fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an  issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII  inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once.  Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of  all  the class  members’ claims will produce a common answer to the crucial discrimination question.  Pp. 8–12.

(b) General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes  the  proper approach to commonality.  On the facts of this case, the conceptual gap between an individual’s discrimination claimand “the existence of a class of persons who have suffered the sameinjury,”  id., at 157–158, must be  bridged  by “[s]ignificant proof that an employer operated under a general policy of discrimination,”  id., at 159, n. 15.  Such proof is absent here.  Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that WalMart’s corporate culture made it vulnerable to gender bias.  But because he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking,  his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14.

(c) The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short.  Pp. 14–20.

2. Respondents’ backpay claims were improperly  certified under Rule 23(b)(2).  Pp. 20–27. 

(a) Claims for monetary relief may not be certified under Rule23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief.  It is unnecessary to decide whether monetary claims can ever be certified under  the Rule because, at a minimum, claims for individualized relief, like backpay, are excluded.  Rule 23(b)(2) applies only  when a single, indivisibleremedy would provide  relief to each  class member.   The Rule’s history and structure indicate  that individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and  the right to opt out.Pp. 20–23.  

(b) Respondents nonetheless argue that their backpay claims were appropriately certified under Rule 23(b)(2) because those claimsdo not “predominate” over their injunctive and declaratory  relief requests.  That  interpretation has no basis  in the Rule’s text and does obvious violence to the Rule’s structural  features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify eliminating Rule 23(b)(3)’s procedural protections, and creates incentives for class representatives to place at risk potentially valid monetary relief claims. Moreover, a district court would have to reevaluate the roster of class members continuously to excise those who leave their employment and become ineligible for classwide injunctive or declaratory relief.  By contrast, in a properly certified (b)(3)class action for backpay, it would be irrelevant whether the plaintiffsare still employed at Wal-Mart. It follows that backpay claimsshould not be certified under Rule 23(b)(2). Pp. 23–26.

(c) It is unnecessary to decide whether there are any forms of “incidental” monetary relief that are consistent with the above interpretation of  Rule 23(b)(2) and  the Due Process Clause  because respondents’ backpay claims are  not  incidental  to  their requested injunction.  Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay.  Once a plaintiff establishes apattern or practice of discrimination, a district court must usuallyconduct “additional proceedings . . . to determine the scope of individual relief.”  Teamsters v. United States, 431 U. S. 324, 361.  The company can  then raise individual affirmative defenses and demonstrate that its action was lawful.  Id., at 362.  The Ninth Circuit erred in trying to replace such proceedings with Trial by Formula. Because Rule 23 cannot be interpreted to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b), a class cannot be certified on thepremise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.  Pp. 26–27. 603 F. 3d 571, reversed. 

My initial iimpressions are probably pretty obvious. First, this case came down to the size and complexity of both Wal-Mart's operation and the potential class. A majority of the Court simply did not believe that all of the class members could possibly be injured in the same way given the multitude of decisionmakers at issue--even for the disparate impact claim, which doesn't require intent. Second, a majority of members of the Court do not seem to believe that causation can be proven by statistical analysis, something that is evident not just in employment discrimination cases, but in other areas as well. A majority of the Court seems very suspicious of the idea that implicit bias could support a claim for disparate treatment--that doesn't seem the right kind of bias that those Justices seem to think must form the basis for a disparate treatment case. Particularly damaging to the use of that evidence was an article by Walker, Monahan, and Miller that criticized Bielby's use of a method they've written about.

I'll continue to drill down, but feel free to add your own impressions in the comments. The decision does not bode well for any kind of systemic case, large class action, or implicit bias case, in my opinion.


June 20, 2011 in Employment Discrimination, Labor and Employment News | Permalink | Comments (3) | TrackBack (0)

New York Target Workers Vote No On Union

Target The UFCW has recently been making Target a major, well, target of their organizing drives.  However, a recent vote in a NY state store went 137-85 against the union.  This is significant because it would have been the first Target in the U.S. to be organized.  The parties cite the usual causes for the vote:  the union says it was intimidation, the company says the workers didn't feel they needed a union.

Expect to hear more about these campaigns.  The UFCW, while not giving up on Wal-Mart, sees Target as another potentially huge opportunity.  Target, on the other hand--much like Wal-Mart--fears the first store going union and its possible spillover effects.  The upshot is a lot of energy on both sides.

Hat Tip:  Dennis Walsh


June 20, 2011 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

EEOC Hearing on Disparate Treatment in Hiring

E3 The EEOC will hold a public meeting at 9:30 a.m. (Eastern) Wednesday, June 22, on the role of disparate treatment in hiring and the actions being taken by the EEOC and the private sector to address it.  The meeting will be held at EEOC headquarters, 131 M Street, N.E., and is open for public observation of the Commission’s deliberations.  Invited panelists will speak.



June 20, 2011 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)