Friday, September 9, 2011
I'm live-blogging at the conference, co-sponsored by The Labor Law Group, Public Sector Employment in Times of Crisis. Kudos to Ann Hodges (photo above) for organizing it. Here's a brief description:
The University of Richmond School of Law Austin E. Owen Lecture, in conjunction with the Labor Law Group, the American Constitution Society, and the Center for Leadership in Education, will host a free one-day conference, Public Sector Employment in Times of Crisis, in the law school's Moot Court Room. This conference will bring together experts on issues relating to public employment that have been the focus of political debate in the current economic crisis.
A quick summary can't do justice to the quality of the presentations. We started with detailed discussion of public employee compensation and pensions. Joe Slater, Marty Malin, and Ann Hodges then spoke on public sector collective bargaining (or, more recently, the lack thereof). Henry Chambers and Steve Befort spoke on the constitutional framework for public employment. I'm looking forward to hearing later this afternoon from Laura Cooper the latest installment on her empirical work on labor arbitration.
Among the attacks against the NLRB is a recent House bill that would eliminate the Board's ability to order an employer to reinstate any work, even if it was moved for retaliatory reasons. Julius Getman (Texas) wrote a letter on behalf of the AFL-CIO Lawyers' Coordinating Committee and any scholar who wants to sign on that opposes the bill [Download Getman Letter]. The letter does a nice job criticizing this proposal (my personal favorite is its question about how the bill's authors found "more than a dozen strong remedies" to correct unfair labor practices).
This is clearly another attack against the NLRB GC's Boeing complaint and another attempt to interfere with the agency's adjudication process. I'm normally reticent about signing on to things, but this one is a no-brainer to me. Even if you're more management-side, if you believe in maintaining the NLRB's independence (or any agency's for that matter), this should be an issue that you care about.
To sign on--which be be done today before it's delivered to the Hill--email or call Erin Johansson at: firstname.lastname@example.org or (202) 262-7002.
Wednesday, September 7, 2011
The Ninth Circuit affirmed the grant of a preliminary injunction yesterday against the State of Arizona, requiring it to continue to provide workers in same sex intimate relationships the employee benefits provided to employees in opposite sex intimate relationships. The decision, Diaz v. Brewer, blocks a state law that would have removed those benefits for same sex couples.
In 2008, Arizona had opened its employee benefits to allow the domestic partners of state employees to be considered dependents. Those partners could be of either sex. Six months later, the voters of the state approved a proposition, amending the state constitution to define marriage as between only a man and a woman. About a year later, the state passed a law redefining dependents as spouses (or children) only. A number of state employees who had received partner benefits for their same sex partners sued to enjoin the effect of the new law, and the district court granted a preliminary injunction. The Ninth Circuit affirmed.
The law was neutral as to sexual orientation on its face, but the bill was clearly directed at same sex couples. Moreover opposite sex couples could qualify for benefits by getting married and so avoid the effect of the law, while same sex couples could not. The Ninth Circuit applied rational basis to the statute, but applied it "with bite" since the law was directed at an unpopular group. Citing U.S. Dep't of Agriculture v. Moreno, a Supreme Court decision that struck down a restriction to food stamps aimed at "hippies" using the rational basis test, the Ninth Circuit found that the denial of benefits to same sex couples didn't promote any of the legitimate government interests proposed by the state: cost savings and administrative ease or promoting marriage. Any costs or administrative burdens on the state in administering its benefits were not caused by the sex of the employees' intimate partners. Likewise, by denying benefits to people whom the law prohibited from marrying, the state could hardly be promoting marriage.
The underlying right at stake is not to the benefits themselves, just to be clear. The state could get rid of its benefit plans entirely or refuse to extend benefits to any dependents (or adult dependents) of state employees, so the state has some options. It is just not allowed to distinguish on the basis of the sexual orientation or identity of the employee.
This case is part of a larger trend in this area in which courts seem to be to apply rather searching rational basis review to sexual orientation and identity issues, relying on Lawrence v, Texas and Romer v. Evans to look closely at laws enacted during a backlash against the LGBTQ movement. Look for more.
Dennis Nolan sends us this notice:
The NAA’s Research and Education Foundation (REF) supports research and education relevant to labor and employment arbitration. The Foundation welcomes grant applications of up to $25,000 for any of the following purposes:
- The study and understanding of grievance procedures, the arbitration process and other forms of labor and employment dispute resolution and the impact of law on these processes.
- The education and training of persons engaged in the resolution of labor -management and employment disputes. Included are the funding of lecture programs, symposiums, conferences and training seminars.
- The preparation and publication of books, symposium materials, articles, and audio-visual materials (e.g. films; websites; CDs) designed to enhance the competence of persons engaged in the arbitration and mediation of labor-management and employment disputes.
- Projects that foster the highest standards of integrity, competence, honor and character of persons engaged in arbitration and other forms of labor and employment dispute resolution.
- The preparation of material designed to keep arbitrators and students of labor-management and employment relations abreast of current research into the arbitration process, and the development of procedures or techniques for the resolution of labor and employment disputes in this and in other countries.
Detailed information on how to apply for an REF grant can be found on the NAA website. Follow the link to the Research and Education Foundation.
Tuesday, September 6, 2011
- Samuel Estreicher, Negotiating the People's Capital Revisited, p.253.
- Paul M. Secunda, Constitutional Contracts Clause Challenges in Public Pension Litigation, p. 263.
- Anne Marie Lofaso, In Defense of Public-Sector Unions, p. 301.
- William A. Herbert, Public Sector Labor Law and History: The Politics of Ancient History?, p. 335.
- James A.W. Shaw, The Judiciary's Efforts to Save Public Employers from the Bargains They Have Made: The Non-Delegability and Against Public-Policy Doctrines, p. 363.
- Christine Chester & Amanda Cully, Putting a Plug in America's Brain Drain: A Proposal to Increase U.S. Retention of Foreign Students Post-Graduation, p. 385.
- Christine Chester & Amanda Cully, Putting a Plug in American's Brain Drain: A Proposal to Increase U.S. Retention of Foreign Students Post-Graduation, p. 385.
Monday, September 5, 2011