September 2, 2011
2011 Seton Hall Young Scholars Forum
Announcing. . .
The Sixth Annual Seton Hall Employment & Labor Law Scholars' Forum
Friday, October 28, 2011 & Saturday, October 29, 2011
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law. To that end, Seton Hall will convene its sixth annual Employment & Labor Law Scholars' Forum on October 28th - 29th. This year’s Forum will feature four presenters:
- Jeannette Cox, University of Dayton School of Law
- Deborah Thompson Eisenberg, University of Maryland School of Law
- Ariana Levinson, Louis D. Brandeis School of Law, University of Louisville
- Sachin S. Pandya, University of Connecticut School of Law
The paper topics are:
Jeannette Cox:. Pregnancy as “Disability” and the Amended Americans with Disabilities Act
Deborah Thompson Eisenberg: The Amicus Strategy: How the Department of Labor Establishes Policy in the Courts
Ariana Levinson: What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims
Sachin S. Pandya: The Puzzle of the Employee-Misconduct Defense in American Work Law
Comment and critique will be provided by the following scholars:
Susan Bisom-Rapp, Thomas Jefferson School of Law
Deborah L. Brake, University of Pittsburgh School of Law
Timothy P. Glynn, Seton Hall University School of Law
Tristin K. Green, University of San Francisco School of Law
Elaine W. Shoben, William S. Boyd School of Law, University of Nevada, Las Vegas
Charles A. Sullivan, Seton Hall University School of Law
Michael E. Waterstone, Loyola Law School, Los Angeles
Michael J. Zimmer, Loyola University, Chicago, School of Law
August Employment Data
The Department of Labor released its August employment data today, and it wasn't pretty. There were no net job gains last months--a far cry from the 150,000 jobs needed every month to keep up with the expansion of the labor market--and the unemployment rate remained at 9.1%. The large Verizon strike (45,000 workers) may have impacted the numbers somewhat, but it was still disappointing. Local public employment was responsible for 20,000 jobs loss (state employment went up 5,000) and hiring in manufacturing and health care, which had been good, slowed some. Finally, the labor participation rate went down .01 percent, to 58.5 percent.
August 31, 2011
6th Circuit: Arbitration Clause in Employee Policy Not Enough
The Sixth Circuit issued an important arbitration opinion yesterday in Hergenreder v. Bickford Senior Living Group, LLC. The plaintiff in the case was a registered nurse, who shortly after being hired, had to take a leave of absence for cancer treatment, and was subsequently fired because of that leave. Hergenreder wanted to sue Bickford under the ADA, but Bickford asserted that she had to arbitrate her claim, and the district court agreed. The Sixth Circuit disagreed and so reversed and remanded the case to proceed.
The arbitration clause was contained in a dispute resolution policy. That policy was not itself contained in the employee handbook. Instead, in one brief sentence, the employee handbook stated that there was a dispute resolution policy and that employees should look at it for the details. Hergenreder signed a form stating that she had read and understood that handbook, but the Sixth Circuit ruled that there was not sufficient evidence that Hergenreder had been informed of the arbitration policy and actually agreed to be bound by it. The employee handbook itself never mentioned arbitration, and although the policy statement the handbook referred to had an explicit arbitration clause, and did state that agreeing to the arbitration clause was a condition of employment, there was no separate acknowledgement by Hergenreder that she had been notified of the contents of the dispute resolution policy. The oblique reference in the employee handbook was not enough to constitute an offer under state contract law.
It also seems to have helped that Bickford's employment handbook was carefully worded, as many are, to make clear to employees that the policies it contained were not binding on it. To drive that point home, the handbook stated "“[t]his handbook is intended as a summary only and is not a contract between Bickford Cottage and its employees." It further provided, in a separate section,
This handbook has been provided to you for the purpose of acquainting you with the personnel policies and procedures, responsibilities of Bickford Cottage. It does not constitute a contract of employment in whole or in part. Bickford Cottage may add to, change or delete any of the contents at any time with no notice.
This is an important lesson for employers, I think, on information management and clarity of communications. On the one hand employers don't want to be bound by most things that are put into employee handbooks, but use those as a way to let employees know what is expected of them to up front, which is a good business practice to create a sort of due process of the workplace. That kind of informal due process tends to make employees more comfortable, both because they feel like they know what to expect, and because they have at least an impression that the employer will act fairnly and consistently. Employers want to be able to be flexible, though, to address situations they hadn't envisioned or to change with changing circumstances.
On the other hand, employers do want employees to be bound to arbitration agreements. To be sure that they have created a contract for that, employers have to be careful about the amount of information they give employees at one time, and the manner in which that information is delivered. Having a separate arbitration policy made sense here, and this employer even had a form that employees were to sign, acknowledging knowledge of the policy (and presumably acceptance by accepting employment). The problem was that Bickford could not show that Hergenreder had actually received a copy of that policy or that she had signed any acknowledgement form. No actual knowledge here, no offer and acceptance, and no contract.
August 30, 2011
Can Company A "aid or support" a Union Trying to Organize Company B?
Redstate.com [(a conservative organization) and Media Matters (a liberal organization) are in a public political fightin which the NLRB posting requirement is a skirmish]. Redstate went on to call Media Matters out as being a supporter of workers rights, but not having an organized workforce itself. Here's where it get interesting. Redstate then makes an offer to Media Matters employees, that it is willing to help them organize. So my question is does that offer violate NLRA 8(a)(2) or some other law? 8(a)(2) makes it unlawful for an employer to offer aid or support to a labor organization- but what if it's somebody else's employees? Is it Ok for "an employer" to aid/support so long as it's not "the Employer"? Is there some other law out there which prevents employers from supporting unions in this way?
Three Big NLRB Cases Today
Not surprisingly, some bigger cases decided at the end of Wilma Liebman's term are coming out. I haven't had time to read these yet (the Board just issued an announcement on them), but the summaries given by the Board follows. The first two cases deal with challenges to a union's majority status. In addition to the specifics detailed below, the Board define “a reasonable period” of time under the new (or new-old) rules: in voluntary recognition cases, a reasonable period will range from six months to one year, depending on the circumstances. In successorship cases, a reasonable period will be six months if the new employer follows the existing contract, and up to one year if the new employer imposes its own terms and conditions.
focuses on the new bargaining relationship created by an employer’s voluntary recognition of a union based on a showing of support by a majority of employees. For over forty years, federal law had barred challenges to a union’s representative status for a “reasonable period” following voluntary recognition, in order to give the new bargaining relationship a chance to succeed. In its 2007 decision in Dana Corp., the Board allowed for an immediate challenge to the union’s status by 30% of employees or a rival union. Today’s decision in Lamons Gasket returns the Board to the law as it existed before Dana Corp.
In the second decision, UGL-UNICCO Service Company, the NLRB reversed MV Transportation's expansion of employees' ability to challenge a union's status following a sale or merger of the company:
It overrules the 2002 Board decision in MV Transportation, which created an immediate window after the sale or merger for the union’s status to be challenged by 30% of employees, the new employer, or a rival union. The MV Transportation decision in turn reversed a 1999 decision in St. Elizabeth Manor, Inc., under which the new bargaining relationship between the incumbent union and the new employer was held to be protected for a reasonable period of time without a challenge to the union’s representative status. Today’s decision returns the Board to that doctrine.
Finally, a third case--addressed in a separate announcement--is Specialty Healthcare. That case deals with appropriate bargaining units in non-acute health care facilities (acute care facilities have their own published rule). Specialty Healthcare:
overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. Employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces. The Board majority found that the 53 CNAs who sought an election in Specialty Healthcare constituted an appropriate unit, and remanded the case to the region to schedule an election.
The line-up was 3-1 in all of the cases, with the usual suspects on each side.
Hat Tip: Patrick Kavanagh
People Who Take Care of People
People who take care of people
get paid less than anybody
people who take care of people
are not worth much
except to people who are
sick, old, helpless, and poor
people who take care of people
. . .
come and go without much fuss
unless they don’t show up.
August 29, 2011
Recently Published Scholarship: ABA JLEL
ABA Journal of Labor & Employment Law
Volume 26, Number 3 (Spring 2011)
- Tyler Wiese, The Editor's Page, p.v.
- Richard L. Alfred & Jessica M. Schauer, Continuous Confusion: Defining the Workday in the Modern Economy, p.363.
- Scott Brutocao & Angela N. Marshall, Cost-Saving Options for Employers and Other Wage and Hour Issues, p. 383.
- Allan G. King & Rod M. Fliegel, Conviction Records and Disparate Impact, p. 405.
- Bill Lurye, On the Legitimacy of a Mathematical Evaluation of NLRB Decision Making, p. 427.
- Larry L. Turner, Has the Class Action Fairness Act Met Expectations for Wage and Hour Employment Litigation?, p. 439.
- Kaitlin Picco, The Mixed Motive Mess: Defining and Applying a Mixed-Motive Framework, p. 461.
- Elizabeth Dahlstrom, ERISA Section 510 Should Be Interpreted to Cover Internal, Unsolicited Employee Complaints, p. 481.
- Review of the Labor and Employment Law Decisions of the United States Supreme Court's 2009-10 Term, p. 501.
Call for Papers: Workplace Democracy
Jean Sternlight (UNLV) sends the following message:
On behalf of the Saltman Center for Conflict Resolution I am delighted to announce a symposium in which I hope many of you will be interested. Our focus is democracy in the workplace, and the symposium will be interdisciplinary in nature. See the attached attached call for papers for details, and I hope many of you will choose to participate. Remember, Las Vegas is quite nice in February.
The symposium will be held February 24-25, 2012; the deadline for abstracts is September 30, 2011.
Recently Published Scholarship
- Kathryn L. Moore, The Future of Employment-Based Health Insurance After the Patient Protection and Affordable Care Act, 89 Nebraska L. Rev. 885 (2011).
- Maura Strassberg, An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference with Former Employee Non-Disclousre Agreements, and the Threat of Disqualification, Part I, 89 Nebraska L. Rev. 923 (2011).