Saturday, August 6, 2011

More on the FAA Shutdown

Airplane_1 Dana Milbank's opinion column in the Washington Post has an interesting story on Rep. Mica's role in the FAA shutdown that was recently resolved.  Mica initially sought to clean up some FAA rules, but when he also sought to flip the NMB's new election rules, Democrats stood firm.  He responded by, among other things, targeting small airports in the states of Harry Reid and Jay Rockefeller to get their attention.  But the Democrats allowed the shutdown happen and eventually got a temporary funding extension without the rule changes.

What's interesting about the story is Mica's stated surprise at the other side playing hardball.  As Milbank notes:  "Mica, as much as anybody, created a culture of distrust, where staking out bargaining positions leads not to compromise but to warfare. And now he’s surprised?"  The norm for a while, particularly with labor issues, is clearly going to be a lot of hardball tactics on both sides. It's unlikely to be productive, but at least it will remain interesting for those of us in the field.


August 6, 2011 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Friday, August 5, 2011

July Unemployment Data

Hiring The Department of Labor released its July employment figures today.  The short version is that they're better than expected, but still far from stellar.  The number of jobs increased by 117,000 last month and the unemployment rate decreased slightly to 9.1%, from 9.2% the previous month.  The figure was even better in the private sector, which added 157,000 jobs (the public sector is still seeing job cuts).  One notably bad figure is the 58.2 labor participation rate, which is the lowest in almost three decades.  At the least, the report avoided fanning the stock market panic of yesterday, but it's not turning anything around either.


August 5, 2011 in Government Reports | Permalink | Comments (0) | TrackBack (0)

More on Faculty Hiring Age Discrimination Case

Image Rick posted earlier this week about the age discrimination suit against Michigan State Law School by Nicholas Spaeth, former Rhodes Scholar, Justice White clerk, and North Dakota Attorney General. The National Law Journal and the ABA's Weekly e-Journal provide more information for us and provide a link to the complaint.

Mr. Spaeth filed EEOC charges against more than 100 law schools that did not interview him at the AALS Faculty Recruitment Conference last fall. Some of those charges are still pending. This is the first action in court that Mr. Spaeth has brought. 

As pointed out in the discussion Jeff Lipshaw began at Prawfsblawg, this will likely be a challenging case, although the complaint does a pretty good job at focusing on three comparators--the candidates hired by Michigan State. The complaint alleges that Mr. Spaeth was more qualified than the three in prestige of the law school he went to, his academic achievements, his clerkship, and his practice experience. He also alleged he had more teaching experience with three years as an adjunct and one year as a visitor, whereas the others had fewer years of teaching experience. He further alleges that he had a better scholarly record, alleging that the three hired had not published a traditional law review article before they were selected to interview but that:

He edited the American Indian Law Deskbook and authored numerous other publications. He filed over forty amicus briefs with the United States Supreme Court and argued groundbreaking cases before the United States Supreme Court on three separate occasions. He also delivered a paper at the Kremlin comparing the U.S. and Soviet legal systems; published a major task force study addressing the process of choosing federal judges; wrote a series of internal papers on credit risk, interest rate risk, and the mortgage crisis for the Federal Home Loan Bank System; and published many other articles in newspapers and legal publications.

Mr. Spaeth also made several allegations about what the school should have considered to be important qualifications for the particular subjects it hired for.

I think Mr. Spaeth has a difficult case to make for a number of reasons, mostly tied to the fact that this is an age case rather than a case about a different protected class, but also tied to the peculiarities of faculty hiring. Age cases are especially challenging because the plaintiff has to prove that age, and not just something correlated with age, was the but-for reason for the employer's decision. So if an employer preferred recent graduates, that by itself isn't age discrimination under Hazen Paper Co. v. Biggins, because older people can be recent graduates. Moreover, there are so many non-discriminatory reasons that schools can assert in part because considerations include somewhat fluid assessments of "soft skills" (curricular fit, personality fit with the current faculty, personality fit with current students, likelihood of involvement with local organizations, potential for future scholarship, etc.) that it may be difficult to show pretext. Plus, the sheer numbers of FAR forms plus the limited information on the form itself will create problems for plaintiffs. Most schools only look at those forms to decide who to interview. If the form does not reflect curricular fit, a scholarly record, or something to suggest a high potential for future scholarship, the chances of a candidate getting interviews is very slim, no matter how otherwise impressive their credentials or practice experience.

For what looks like a stronger case, based on my superficial read, see Paul Caron's post on the suit by Donald Dobkin against the University of Iowa for age discrimination under Iowa's Civil Rights Act for disparate treatment and disparate impact. The state trial court in Iowa denied the University's motion for summary judgment just this week.

Most of us don't think of ourselves as employers, but we really are. For the most part, when law schools hire new faculty, they choose based on who we choose. So we need to think about what criteria we use. This lawsuit should be a great motivator for more of us to start talking about what law professors do, what makes a good law professor, what skills we need, and what experiences best predict good future performance. These are certainly discussions going on internally for at least some institutions and they animate the law school scam narrative currently so popular. They also animate the debate over law school job security and reporting standards, and the ever-present US News rankings. The more we can publicly articulate what matters, the less likely we will be (we hope) to engage in what at least may look like discriminatory behavior, and the better we'll be able to stand up to the kind of hostile public scrutiny that we are all experiencing right now.


August 5, 2011 in Employment Discrimination, Faculty News, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, August 4, 2011

NFL Players Ratify Deal With Owners

NFL It took a while, the NFL players have finally voted to ratify the agreement settling the lockout. The CBA's term is 10-year and, among other things, includes testing to HGH (human growth hormone).  The details of that testing still need to be worked out and were responsible for a lot of discussion among the players before the vote.

So, it's now official--professional football is back.


August 4, 2011 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

FAA Funding Temporarily Restored

Airplane_1 Word is just out that Congressional leaders have reached a short-term compromise to continue funding the FAA.  The dispute had caused serious operational problems at the FAA, including furloughs, and was due in part to the NMB's new election rule.

I haven't seen any details of what the compromise was; one source said that a House short-term funding extension will be used, but I don't know the details of that bill.  Senate Majority Leader Reid noted that the issues have not been resolved, which I take to mean that the fight over the NMB rule will continue.  What appears to have happened was that both sides agreed to give the FAA funding for at least a while longer while the fight continues. 


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

Lawsuit Threat Against New NLRB Election Rules

NLRB This isn't unexpected, but we have confirmation that, if the NLRB promulgates something close to what it has proposed in its new election rules, legal challenges will be forthcoming.  An official at the Chamber of Commerce has all but promised that the group--no doubt joined by others--will challenge many of the proposed rules.  The group appears concerned about the attempt to speed up the election, which would occur by, among things, allowing electronic petition filing, decreasing pre-election challenges, and speeding up administration of elections.

Perhaps I'm being naive, but I don't see much hope for such a suit except to possibly delay the rules' implementation.  The Chamber's argument appears to be that faster elections deprive employers their right to express their opinions about unionism.  That argument seems really weak as a legal matter because there is no right to an extended period of time of expressing its opinion.  Even if a judge isn't sympathetic to the employer coercion concerns underlying these changes, he or she would have to turn a blind eye to decades of administrative law demanding deference in this context.  Indeed, courts have repeatedly held that the NLRB is entitled to the most deference when establishing election rules.  So, I don't see this as a serious threat to whatever the Board comes out with (unless, of course, some procedural requirement wasn't complied with).

Finally, speaking of required procedures, you can access transcripts and video of the Board's two-day public meeting on the rules here.

Hat Tip:  Patrick Kavanagh


August 4, 2011 in Labor and Employment News, Labor Law | Permalink | Comments (6) | TrackBack (0)

Wednesday, August 3, 2011

No NLRB Recess Appointments

NLRB Word is now out that Senate Majority Reid will hold a series of pro forma sessions of the Senate throughout August.  The importance of this for NLRB junkies is that it appears to remove the president's ability to make recess appointments--such as appointments for the fifth Board member or for Wilma Liebman when her current term expires on August 27.  So, the Board is facing a very real prospect of having only three members at the end of the summer.  Moreover, given that Craig Becker's recess term ends on December 31, we could easily be looking at yet another two-member Board after that.  Indeed, it doesn't take a lot of imagination to suspect that NLRB opponents are aiming for this to take advantage of the Board's inability to decide cases with only two members.  Stay tuned.

Hat Tip:  Patrick Kavanagh


August 3, 2011 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)


Mariana One of the best things about the annual conference of the Southeastern Association of Law Schools (besides the lovely environs) is the Labor and Employment Law programming, and this year was no exception. There were three panels and a discussion group all devoted to labor and employment issues. Each one gave us lots to think about, and the level of discussion was excellent. Feel free to chime in with additional impressions (for those who were there) or questions in the comments.

On Thursday was:

  • Collective Bargaining Issues as Several Sports’ Labor Contracts Expire
    • Moderator: Professor Jonathan Cardi, Wake Forest University School of Law
      • Speakers: Professor Gabriel Feldman, Tulane University Law School; 
      • Professor Robert Barry, Boston College Law School; 
      • Professor Timothy Davis, Wake Forest University School of Law; 
      • Professor William Gould, Stanford University School of Law

Then on Friday, 

  • The State of Labor and Employment Law in Light of Recent Supreme Court Decisions
    • Moderator: Professor Jeffrey Hirsch, University of North Carolina School of Law
      • Speakers: Professor Theresa M. Beiner, University of Arkansas at Little Rock, William H. Bowen School of Law;
      • Professor Henry Chambers, Jr., University of Richmond School of Law;
      • Professor Cynthia Nance, University of Arkansas School of Law;
      • Professor Suzette Malveaux, The Catholic University of America: Columbus School of Law;
      • Professor Marcia McCormick Saint Louis University School of Law
  • Discussion Group: Should Employment Claims Continue to Be Arbitrated?
    • Moderator: Professor Ariana Levinson, University of Louisville, Louis D. Brandeis School of Law
      • Discussants: Professor Richard Bales, Northern Kentucky University, Salmon P. Chase College of Law;
      • Professor Kristen Blankley, University of Nebraska College of Law;
      • Professor Thomas Burch, The University of Georgia School of Law; 
      • Professor Andrea Doneff, Atlanta's John Marshall Law School; 
      • Professor Michael Green, Texas Wesleyan University School of Law; 
      • Professor Dennis Nolan, University of South Carolina School of Law; 
      • Professor Marcia McCormick, Saint Louis University School of Law; 
      • Professor Kathryn Sabbeth, University of North Carolina School of Law; 
      • Professor Steven Ware, University of Kansas School of Law; 
      • Professor Michael Yelnosky, Roger Williams University School of Law
  • Twombly & Iqbal in the Workplace
    • Speakers: Benjamin Cooper, The University of Mississippi School of Law; 
    • Professor Suzette Malveaux, The Catholic University of America: Columbus School of Law; 
    • Professor Joseph Seiner, University of South Carolina School of Law; 
    • Professor Suja Thomas, University of Illinois College of Law

I missed Thursday's panel, so I can't comment on the focus of that discussion, but if any readers were there, please chime in in the comments. Friday's summary of the Supreme Court cases focused on North American Stainless, the third-party retaliation case, Staub, the cat's paw case (and we all agreed that was a terrible analogy); Whiting, Arizona's immigration-employment law case; Wal-Mart, the gender class action, and Concepcion, the arbitration case. Not only was each case interesting on its own, but the comparison and contrasts between them were fascinating.

The arbitration discussion group had a very broad focus on how arbitration works or should work in the employment law (rather than labor) context. Discussants came from a variety of perspectives, and the discussion involving members of the audience was especially interesting. It is not clear that management or employee advocates are as interested in arbitration as they once were.

Finally, the panel on Iqbal and Twombly was very illuminating about the effects those decisions have had on employment discrimination cases. Maybe not surprisingly, employment discrimination case dismissals have risen significantly at a greater rate than other types of cases since Twiqbal, as the two Supreme Court decisions have come to be known. At the same time, the conditions may be getting riper for rule reform in the next few years to reverse those effects.


August 3, 2011 in Commentary, Conferences & Colloquia, Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: Comparative LLPJ


Comparative Labor Law & Policy Journal
Volume 32, Number 4, Summer 2011

Competing Conceptions of Representational Legitimacy, p. 841

  • Ana Virginia Gomes and Mariana Mota Prado, Flawed Freedom of Association in Brazil:  How Unions Can Become an Obstacle to Meaningful Reforms in the Labor Law System, p.843.
  • Erika Kovacs, Hungarian Unions:  How Representative?  How Effective? p. 891.
  • Itai Svirski, Moving to Bottom-up Representation:  A Comment on Gomes and Prado, "Flawed Freedom of Association in Brazil," from the Perspective of the Developing New Unionism in Israel, p. 915.
  • Gian Guido Balandi, From Corporatism to Freedom of Association:  A Note About Italy, p. 925.
  • Nikita Lyutov, Freedom of Association: The Case of Russia, p. 933.

Other Articles:

  • Alexander De Becker, The Legal Status of Public Employees or Public Servants:  Comparing the Regulatory Frameworks in the United Kingdom, France, Belgium, and the Netherlands, p. 949.
  • Nick Robinson and Varun Gauri, Education, Labor Rights, and Incentives:  Contract Teacher Cases in the Indian Courts, p. 991

Three Perspectives on the Viking and Laval Decisions

  • Bernard Adell, Resisting Lower Terms for Imported Workers:  Laval-Inspired Reflections on the Canadian Law, p. 1023.
  • Frank Hendricks, Beyond Viking and Laval:  The Evolving European Context, p. 1055.
  • Steven L. Willborn, Laval, Viking, and American Labor Law, p. 1079

Book Reviews

  • Pepper D. Culpepper, reviewed by John Buchanan, Quiet Politics and Business Power:  Corporate Control in Europe and Japan, p. 1097.
  • Lane Kenworthy, reviewed by Chris Howell, Jobs with Equality, p. 1101.
  • Amanda Tattersall, reviewed by Maite Tapia, Power in Coalition:  Strategies for Strong Unions and Social Change, p. 1107.


August 3, 2011 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Accommodating Sex Differences

Difference Deborah Weiss (McCombs Busniess (Texas)) has just posted on SSRN her article All Work Cultures Discriminate.  Here's the abstract:

Current research supports the view that the average man and the average woman differ somewhat in their personality and suggests that these statistical sex differences have some heritable component. As a result, the average man and the average woman will flourish in different types of workplaces and an employer’s method of motivating and evaluating employees may be fair, on average, to one sex and unfair, on average, to the other. Accommodating both sexes may be easy, hard, or impossible.

In this paper I attempt to examine the complex implications of statistical sex differences in personality for the law of employment discrimination. Research does not support some traditional assertions about sex differences. When defendants invoke lack of interest as a defense, plaintiff should abandon their current strategy of denying the existence of sex differences and instead plaintiffs question whether sex differences take the particular form asserted by defendants.

A more difficult question is whether the law should allow plaintiffs to raise the question of sex-biased work culture as an element of their claim. Such claims, I argue, should be considered only as applied to extreme behavior whose regulation can be justified on more general grounds. Such claims would be better regarded as a form of disparate impact than as a form of disparate treatment.
Finally and most importantly, the law must not interfere with voluntary employer efforts to devise work cultures that are congenial to women. Such experiments have been made more difficult by the Supreme Court’s recent decision in Ricci v. de Stefano and I address how a modified affirmative action defense might permit desirable innovation in work cultures.


August 3, 2011 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 2, 2011

FAA Funding Hung Up Over Labor Issue

Airplane_1 Another funding dispute in D.C. has been overshadowed by the debt ceiling issue, and this one doesn't look like it will be solved soon.  Congress has failed to grant the FAA a needed funding extention, which is putting thousands on employees out of work and preventing the government from collecting over a billion dollars in tax revenue

Although there are other issues, the heart of the dispute is a labor one.  As readers might remember, the NMB last year changed its union election rule to require only a majority of employees voting to select the union, rather than the old rule of a majority of all eligible employees (basically it counted a failure to vote as a no vote against the union).  The Republican majority in the House is insisting on reversing that change, but the Democratic majority in the Senate is rejecting that attempt.


August 2, 2011 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

NBA Files Suit And Charge Against Players Union

NBA Does this sound familiar?  Professional sports league and union in dispute over contract renewel.  League locks out players.  Players threaten antitrust suits.  Now, soon after the NFL resolved its dispute, the NBA is facing labor unrest.  And, much like the NFL, the NBA has now filed a lawsuit and a charge with the NLRB against the union.

The timing in the two cases are a bit different, but the issues are very familiar.  The charge allege that the union didn't bargain in good faith--in part because of the union's threats to dissolve or file antitrust claims.  The lawsuit seeks a declaratory judgment that the lockout didn't violate antitrust laws, claims that the Norris-LaGuardia act prevents any injunctions against the lockout (no doubt relying on the NFL's recent win on this issue), and that if the union dissolves all player contracts are void.  This last argument is obviously an attempted nuclear option against the players, but it seems a weak one on the law.


August 2, 2011 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

When Beauty Backfires

Queen Psychological studies have long shown that physically attractive people get the benefit of the doubt, get away with bad behavior, and make more money than everyone else.  However, a paper in this month's Personality and Social Psychology Bulletin, as reported in Psychology Today, being attractive can negatively affect a job application.

One study demonstrated that people give more favorable ratings to attractive job applicants of the opposite sex, but less favorable ratings to job applicants of the same sex.  The same held true of people asked to evaluate videotaped college applicants.  Moreover, "[t]he tendency to judge attractive people of the same sex more harshly is particularly strong among individuals who, themselves, are low in self-esteem. The effect of appearance on evaluations gets smaller for respondents with moderate self-esteem, and goes away entirely for high-self-esteem participants."


August 2, 2011 | Permalink | Comments (0) | TrackBack (0)

Update: Public-Sector Collective Bargaining Fight in OH

5 Rcall that Ohio Republicans have passed SB5 to eviscerate public-sector collective bargaining.  The law will go to a referendum in February.  A Quinnipiac University poll released July 20 shows voters favoring repeal by 24 points.  The Columbus Dispatch reports that the Republican group formed to defend SB5 believes that focusing its $20M warchest on bill provisions that are popular with voters in polls is the key to winning a November referendum:

For example, the last two Quinnipiac polls show that voters favor provisions that require public employees to pay for at least 15 percent of their health care, contribute at least 10 percent toward their pensions, and get paid based on merit instead of tenure.

Now, [Republicans] will simply attempt to divide Senate Bill 5 in voters’ minds, sell the law as a cost-savings measure, and try to do it without demonizing union members or engaging in class warfare.

Hat tip: Carol Furnish.


August 2, 2011 in Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Monday, August 1, 2011

Smartphone Surveillance

Audio David Koeppel writes in Business Insider:

[S]martphones and other pocket-sized devices have given employees and employers a powerful tool to easily record playbacks of sensitive workplace conversations.... The recordings can be used in court or administrative hearings--or subject the parties involved to public criticism. Many cases involve disciplinary proceedings or union organizing.

Katrina Patrick, a Houston lawyer who represents aggrieved employees, says that more than 50 percent of the people who come to her office bring digital evidence. "I'm more surprised when someone comes into my office without digital evidence," she says.

For more, see More People Are Using Smartphones To Secretly Record Office Conversations.  Hat tip: Jennifer Clemons.

Update: David Foley over at LaborRelated asks whether this will create a CSI effect in litigated employment cases:

Are labor and employment cases going to be decided by jurors who don't feel comfortable without science in the equation or wonder things like, "If the boss kept saying stuff like that, why didn't she just record it with her cell phone?"


August 1, 2011 in Employment Common Law, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Age Discrimination in Faculty Hiring

Spaeth-n Jeff Lipshaw posts at PrawfsBlawg about Nicholas Spaeth (photo at left), Stanford '77, who is suing the University of Iowa Law School for purportedly failing to hire him as a law professor because of his age.  His argument seems to be that his practice experience makes him as or more qualified than other applicants.



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

Sunday, July 31, 2011

Ricci Plaintiffs Settle With New Haven

Firefighters The final chapter in the Ricci case has closed.  Last week, New Haven announced that it has reached a settlement with the 20 plaintiffs.  According to the announcement, New Haven will pay the firefighters   approximately $2 million (total), and their attorneys $3 million, for legal fees and costs.  The plaintiffs would also receive pension credit.




July 31, 2011 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)