January 28, 2011
Recently Published Scholarship
- Shailini Jandial George, Do Sexual Harassment Plaintiffs Get Two Bites of the Apple?: Sexual Harassment Litigation After Fitzgerald v. Barnstable School Committee, 59 Drake L. Rev. 41 (2010).
- Meredith B. Stewart, Outrage in the Workplace: Using the Tort of Intentional Infliction of Emotional Distress to Combat Employer Abuse of Immigrant Workers, 41 U. Memphis L. Rev. 187 (2010).
- Debra L. Stegall et al., Survey of Illinois Law: Employment Law, 34 S. Ill. L.J. 903 (2010).
- Brad A. Elward, Survey of Illinois Law: Workers' Compensation, 34 S. Ill. L.J. 1107 (2010).
States Strike Back Against NLRB Secret-Ballot Preemption Stance
As we noted earlier, the NLRB's General Counsel informed four states that their secret-ballot union election measures were preempted by the NLRB. The AGs of those states have now responded and as will probably not be a surprise, have stated in a letter (which you can access here) that they will vigorously defend those laws.
The sole legal basis for the states' position seems to be that their measures do not require secret-ballot elections in all cases and are, therefore, consistent with the NLRB's interpretation of the NLRA. The problem with this argument is that it begs the question of why have the measures? If they apply only where employer's are unwilling to voluntary recognize a union then they're a complete waste of time (save for the opportunity to criticize unions, which may be exactly the point). The states' interpretation also seem to go against the text of the measures, which appear to give individuals the right to vote on union representations, which suggests that an individual employee can insist on a secret-ballot election even if the employer is willing to voluntarily recognize the union.
Adding to this issue is a recent move at the federal level to require secret-ballot elections. We saw this earlier as a reaction to EFCA and it's not likely to go anywhere at this point.
Hat Tip: Dennis Walsh
Onwuachi-Willig a Finalist for Iowa Supreme Court
Congratulations to Angela Onwuachi-Willig, Professor of Law and the Charles M. and Marion J. Kierscht Scholar at the University of Iowa, who has been named one of nine finalists for three Iowa Supreme Court appointments. The positions became available after last November’s retention vote ousted three justices who had ruled that same-sex couples could marry.
Angela graduated from Grinnell College and Michigan Law School, where she was a Clarence Darrow Scholar, a Note Editor on the Michigan Law Review, and an Associate Editor of the founding issue of the Michigan Journal of Race and Law. After law school, she clerked for Solomon Oliver, Jr. (N.D. Ohio) and Karen Nelson Moore (6th Circuit). She practiced as a litigation and employment attorney at Jones Day in Cleveland, and as an employment attorney with Foley Hoag LLP in Boston. She began teaching at U.C.-Davis, then joined the Iowa faculty in 2006.
January 27, 2011
White House Renominates Becker for the NLRB
In what comes as a bit of a surprise (at least to me), the White House today renominated Craig Becker to the NLRB. If confirmed--a really big "if"--he would serve until Dec. 2014.
Obviously, there will be another fight over Becker's nomination. It will be interesting whether the tenor of that battle will be influenced by EFCA essentially fading into the night or the Republicans increased numbers in the Senate. Either way, we'll stay on top of it.
January 26, 2011
Secunda on the Future of Multiemployer Pension and Welfare Plans
Our own Paul Secunda (Marquette) has just posted on SSRN his book chapter, "Future Direction and Challenges for Multiemployer Benefit Plans," which will appear in Trustees Handbook, Kordus ed. (International Foundation, 7th ed. 2011). The abstract:
Multiemployer (or Taft-Hartley) plans find themselves in much trouble and disarray. Although these plans once represented one of the great triumphs in labor relations in providing pension, welfare, and health benefits to unionized workers, these plans are now under siege because of financial/demographic, legislative, and judicial developments. Although multiemployer plans seem less relevant today than in the past, there are still some 10 million participants nationwide in nearly 1,500 multiemployer plans.
And although many of these workers are limited to industries such as trucking, entertainment, construction, and retail (i.e., industries where employees frequently move between jobs in the same industry), the dignity provided for these workers through receiving employee benefits is no less important, nor is the workforce stability that is engendered in these and other industries as a result of the existence of Taft-Hartley plans.
In all, the future for multiemployer plans is very shaky. The hope, however, is that by exploring the financial, legislative, and judicial challenges addressed in this Chapter, and by suggesting needed reforms, the future direction of these historically-important plans can begin to move again in a sustainable direction.
Check it out.
3rd Cir: Living in a Post-Glenn ERISA World
Thanks to friend of the blog, Katie Eyer (Penn) for bringing to my attention the interesting ERISA case of Miller v. American Airlines from the 3rd Circuit Court of Appeals. As Katie points out, this is one of the first major decisions in the Third Circuit to address the post-Glenn world. Readers might recall that in Metropolitan Life v. Glenn, the Supreme Court reaffirmed the Firestone standard for arbitrary and capricious review of denial of benefit claims under ERISA Section 502(a)(1)(B), but also reiterated the need to weigh conflict of interests when plan administrators are both responsible for claim determinations and claim payments.
I will defer here to some interesting points that Katie makes for readers of this blog and others with ERISA on the brain:
1) Following Met Life v. Glenn all structural and procedural factors have to be weighed as part of the merits analysis on arbitrary and capricious review;
2) Employer-funded plans create a conflict of interest, even where they are actuarially grounded (overruling prior Third Circuit case law on the basis of language in the Supreme Court's decision in Met Life v. Glenn)
3) Finds the employer's decision was arbitrary and capricious based almost exclusively on numerous procedural errors & irregularities;
4) Retroactive reinstatement of benefits is the proper remedy for an arbitrary and capricious termination of benefits.
Interested readers can access the decision here. For my two cents, I am still somewhat skeptical that Glenn will lead to that many more plaintiffs winning ERISA section 502(a)(1)(B) claims. This is especially true after the abysmal decision by the Supreme Court last year in Conkright v. Frommert, where plan administrators and their sponsors seem to get a never-ending opportunity to give the least generous interpretation of the plan which might not be considered arbitrary and capricious.
January 25, 2011
Apparently, Someone Isn't a Packers Fan
Just in time for the Super Bowl, this story is just in and provides another example of how the at-will rule really means that employees can be fired for any reason. In this situation, a Chicago car salesman was fired for wearing a Green Bay Packers tie to work (shortly after the Packers beat the Bears). It appears that he'll land on his feet, as he's already been offered a job by a different dealership. Here are some of the facts, courtesy of WGN:
Stone said he wore the tie at Webb Chevrolet on Monday – one day after the Packers beat the Chicago Bears in the NFC championship game at Soldier Field – because he’s been a Packers fan since Ahman Green became a star running back for the Packers in 2000. He also said he wore the tie in honor of his 91-year-old grandmother, a Packers fan who died this month.
Stone said that when he showed up at work, general manager Jerry Roberts called him over to his office and told him he would be fired if he didn’t take off his tie. Stone said he thought Roberts was joking and went back to work.
An hour later, Stone said, Roberts came to the showroom floor and again demanded he take off the tie. When he didn’t, he was fired, Stone said.
“I didn’t know you could get fired for wearing a tie,” Stone said. “I’m supposed to dress up. I’m a car salesman.”
Asked by a WGN-Ch. 9 reporter if he’d fired Stone for wearing a Packer’s tie, Webb Chevrolet general manager Jerry Roberts said, “Correct.”
Roberts said the dealership had previously done promotions involving the Chicago Bears. “I don’t feel that it was appropriate for him to go directly in contrast with an advertising campaign that we spent a lot of money on,” Roberts told WGN reporter Judie Garcia.
But Stone said Roberts’ reasons for firing him were never made clear to him, nor did he get a chance to explain the tie’s emotional significance. Roberts told WGN-Ch. 9 that he didn’t know that Stone’s grandmother was a Packers fan.
I'm guessing that the next person who might need to look for a new job is the general manager, thanks to all the bad publicity this is causing.
Hat Tip: David Schwartz
New Standard Proposed for NLRB "Olin" Deferrals
On Thursday of last week, National Labor Relations Board Acting General Counsel Lafe Solomon announced (in Memorandum GC 11-05) that he will urge the Board to adopt a new approach for determining whether to defer to arbitration decisions and grievance settlements in unfair labor practice cases brought under the NLRA's prohibitions on employer interference and discrimination. Solomon said that he has concluded that in such cases, “the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator.”
Finding that the Board's existing deferral standards “tolerate substantive outcomes from arbitrators that differ significantly from those that the Board itself would reach,” Solomon said the Board should require any party urging deferral to demonstrate that (1) a collective bargaining agreement incorporated the statutory right in issue, or the parties presented the statutory issue to an arbitrator, and (2) an arbitrator “correctly enunciated” and applied NLRA principles in deciding the dispute. Solomon also said that he will urge board members not to give effect to a pre-arbitration grievance settlement unless evidence shows that the parties intended to settle unfair labor practice issues as well as alleged contract violations.
Two commentators who would prefer to remain nameless have weighed in on the proposed change. Says one:
The proposed change, especially the "correctly enunciated" standard, is pretty radical. Any standard that requires the arbitrator to correctly determine exactly what the Board would do would guarantee post-award challenges and undercut arbitral finality.
I don’t see how the proposed position is radical since it is a return to pre-Olin standards that the Board used for many years. Also, I wouldn’t say that it “undercut arbitral finality” since the NLRB would not be overturning an arbitrator’s determination of contract rights at all, but rather adjudicating a statutory issue. What I do find interesting is how broadly both Liebman and Solomon are willing to challenge pretty longstanding pro-Employer Board practices and precedents that survived the Clinton administration--without apparent fear of a backlash from a Republican House in the form of oversight hearings, budget cuts or restrictive riders.
Rejoins the first:
I meant radical only in the sense that it would overturn a 27-year-old precedent and would introduce a fundamentally different regime for review of arbitration awards. The effect on finality is just as you describe. I don't suggest that it's improper for the NLRB to adjudicate statutory rights --- the Board never had to defer at all --- just that by doing so it would undercut the arbitral interpretation of those rights. That means that the many arbitration decisions on the statutory questions would not be final. I'm not questioning the wisdom of the proposal, just noting that in our little corner of the legal world, this would be a pretty big development. (My own preference would be to simply require the arbitrator to address the statutory issues; that's a clear matter of fact, which wouldn't prompt so many Spielberg/Olin challenges.)
Like you, I agree that the most interesting part is Solomon's willingness to tackle a precedent that survived the Clinton administration. It will be interesting to see what the Board itself does. The Clinton Board, although clearly pro-union, tried to avoid picking fights with Congress. If this Board does pick a fight, it's bound to pay for it in just the ways you mention. That might not matter so much if the NLRB (and NLRA, for that matter) had strong support in the Senate and White House, but I don't see that support. I haven't gotten the impression that Obama has any interest in labor law, certainly not enough to expend his political capital to protect NLRB funding or the like. Without that strong support, the NLRB is pretty exposed.
As always, comments are welcome.
Mining Deaths Up in 2010
Mining fatalities in the United States significantly increased in 2010, following a year marked by the fewest deaths in mining history, according to the U.S. Department of Labor's Mine Safety and Health Administration. Seventy-one miners died on the job last year, compared to 34 in 2009. Forty-eight of those deaths occurred in coal mines, and 23 occurred at metal and nonmetal operations. Of the 71 mining fatalities reported, 23 of those victims were killed in surface mining accidents, while 48 miners died in underground mining accidents, 29 of whom were killed in the explosion at the Upper Big Branch mine in April. The leading cause of coal mining deaths was ignition or explosion, followed by powered haulage and roof falls. The leading cause of metal/nonmetal mining deaths was powered haulage, followed by falling or sliding material, and machinery...
Recently Published Scholarship
- Henry L. Chambers, Jr., The Wild West of Supreme Court Employment Discrimination Jurisprudence, 61 S. Carolina L. Rev. 577 (2010).
- John E. Rumel, Federal Disability Discrimination Law and the Toxic Workplace: A Critique of ADA and Section 504 Case Law Addressing Impairments Caused or Exacerbated by the Work Environment, 51 Santa Clara L. Rev. 515 (2011).
- Gary Minda & Douglas Klein, The New Arbitral Paradigm in the Law of Work: How the Proposed Employee Free Choice Act Reinforces Supreme Court Arbitration Decisions in Denying Free Choice in the Workplace, 2010 Mich. St. L. Rev. 51.
- Stephen Plass, Private Dispute Resolution and the Future of Institutional Workplace Discrimination, 54 Howard L. Rev. 45 (2010).
- Alta M. Ray, The Blame Game: Family and Medical Leave Act Violations and Individual Liability in the Public and Private Sectors, 54 Howard L. Rev. 219 (2010).
January 24, 2011
Another Unanimous US Supreme Court Decision: Third-Party Retaliation Claims within the "Zone of Interest" Cognizable
Thanks to Scott Bauries (Kentucky) for bringing to our attention the decision this morning in an important relation case in the employment discrimination context. You might remember our discussions previously about Thompson v. North American Stainless:
[That case involves] employee, Eric Thompson, who was allegedly fired because his then-fiancée, Miriam Regalado, had filed a charge of sex discrimination with the EEOC over the actions of their shared employer. In a fractured en banc decision, the Sixth Circuit Court of Appeals held that Thompson did not have a retaliation claim under § 704(a) of Title VII.
The Supreme Court unanimously reversed in an opinion by Justic Scalia, with Justices Ginsburg and Breyer concurring and Justice Kagan taking no part in the decision (I had predicted 8-1 in favor of plaintiff after oral argument). The Court adopted the “zone of interests” standing test from administrative law and held that the Plaintiff, as the fiancé of the employee retaliated against, is within the zone of interests protected by the Title VII retaliation provisions:
[The Court described the] “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”
Ginsburg concurred separately, with Breyer joining her, to emphasize that the "decision accords with the longstanding viewsof the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII."
Kudos to colleague and friend Eric Schnapper (Washington) who successfully argued this case for plaintiff!
Georgia State Wins National Arbitration Competition
Congratulations to the Georgia State Arbitration Team (left), who defeated the NKU Chase Arbitration Team (right) in the final round of the American Bar Association National Arbitration Competition on Saturday in Chicago. The problem set for the competition involved an employment arbitration agreement. Doug Yarn coached the Georgia State team; I coached the NKU Chase team.