October 8, 2011
A Crain 2-Fer
Work Matters (2010 Kansas J. L. & Pub. Pol'y)
The record-breaking economic downturn experienced by the United States beginning in 2007 has been characterized by high unemployment levels that have proved remarkably enduring. Until recently, however, the federal government seemed willing to accept the notion that the economic recovery could be “jobless,” as other recoveries before this one have been. The major pressure on government to address the unemployment problem seemed to stem only from worries that a high unemployment rate would ultimately undermine the economic recovery because it would erode consumption. In a frustrating game of reverse chicken, jobless workers without income pulled back on spending and employers refused to hire on speculation, preferring to wait for renewed demand for products and services to materialize. Newspapers published dire reports on the extent and depth of the unemployment problem side-by-side with upbeat articles touting the burgeoning recovery and bull stock market. Economists advised us not to worry because employment always lags behind the other indicia of economic recovery. All agreed that increased consumption - not increased work - would be the key driver for recovery when it did arrive.
This essay examines how our nation’s economic health came to be predicated on consumption rather than upon work. It argues that the sidelining of work in public policy discussions and legislative reform agendas is grossly out of step with the reality of experience for everyday people, and thus is anathema to a vibrant and healthy democratic polity. Finally, it outlines how employment law and fiscal policy might be different if we took work seriously - if we treated work as if it matters.
An Imminent Hanging (2011 ABA J. Lab. & Employ. L.)
... The ... fundamental question is whether the NLRA is worth saving at all. ... On the one hand, repeal of the labor laws would undermine the primary support in the law for collective action by workers, and because of its linkage with other social justice movements, could also threaten the individual rights regime that these movements have secured. On the other hand, repeal of the labor laws could re-energize labor unionism. ...
In considering these issues, this essay proposes ways that labor might reinvent itself to become the sort of movement that will inspire and motivate rather than alienate and anger. First, unions should ally themselves with other social movements that are telling the most powerful stories of exploitation - race and sex discrimination, sexual orientation discrimination, human trafficking, abuses of low wage workers and immigrants. Second, labor should emphasize the voice function of unionism more. What self-respecting individual wouldn’t want to be at the table when decisions about her economic future and day-to-day work life are being made? Finally, unions must reconceive themselves as communal organizations that are part of the glue that binds society together. In the end, the weaknesses of labor unionism and labor law are also its strength: union organizing is a direct challenge to corporate power, an opportunity to tell the truth in workers’ voices about the economic realities of our time, and a strategy for wealth redistribution. Unless we wish to be only romantics, placing our heads in the noose and lamenting the decline and demise of the elegant system of labor law, we (intellectuals, union activists, lawyers, and workers) must do the hard work of explaining why unions and labor law are vital to economic prosperity, what the alternative could look like, and why everyone should care.
October 7, 2011
September Unemployment Data
The Department of Labor released its September employment figures today. The numbers were better than expected, but still not that strong. There were 103,000 additional jobs during the month, with the unemployment rate staying at 9.1% (August was also revised up from no job growth to 57,000 more jobs). Part of the uptick was the return of Verizon strikers, which helped push private sector employment up by 137,000 jobs; the public sector lost 35,000 jobs, most of which in education. Temporary employment also improves, with 19,400 more jobs and average hours worked also rose a bit.
On a related note, check out this interestic graphic that shows a geographical development of unemployment during this recession. Not for the faint of heart.
Hat Tip: Michael Duff
October 6, 2011
Visit from Thomas Saenz
Thomas Saenz is the President and General Counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), the country's leading Latino/a legal civil rights organization. He's been visiting our school as practitioner-in-residence for the last two days, and will spend tomorrow meeting with various folks in the local Hispanic community.
His visit has been a tremendous success. I have particularly enjoyed hearing him speak about MALDEF's employment discrimination cases (e.g., a $50M settlement with Abercrombie & Fitch), but his discussions of immigrant rights, voting rights, and education rights has been equally fascinating. His presentation to our students on Using Your Law Degree to Make a Difference was truly inspirational. And it certainly doesn't hurt that his presence has helped us reach out to a part of the community that is educationally being marginalized at nearly every turn.
Court Dismissed FLSA Claim v. Tribal Casino on SMJ Ground
Matthew Fletcher's (Michigan State) Turtle Talk has the key documents in Larimer v. Konocti Vista Casino Resort, Marina & RV Park (N.D. Cal.), in which the court dismissed plaintiff's FLSA overtime case against a casino corporation owned and operated by a Native American tribe. The basis of the dismissal was that under the doctrine of tribal sovereign immunity, the court lacked subject matter jurisdiction over the defendant.
Expert's Meeting on Restatement, Part II
This is the second meeting of experts to discuss the ongoing Restatement of Employment Law Project being undertaken by the American Law Institute. As a meeting of experts, this meeting is only open to persons who are judges of state Supreme Courts and other courts, council members of the American Law Institute, and recognized experts in the area of Employment Law.
The first meeting took place in California at Hastings Law School in 2008 and the papers were published in the Journal of Employee Rights and Employment Policy. At that point, only two chapters of the Restatement had been written. This second meeting takes up the continuing critique as additional chapters are being added and additional critique is necessary on the project as a whole. Papers from the conference will again be published.
The meeting is sponsored by the Labor Law Group, the American Bar Foundation, Northwestern Law School, and Loyola Chicago Law School. Here's the agenda.
October 5, 2011
Hosanna-Tabor Oral Argument Transcript
The transcript from the Supreme Court's oral argument today in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is available on the Supreme Court's website, and it looks to have been a spirited discussion.
The school urged that the Court adopt a categorical approach to the ministerial exception, esentially that courts lacked jurisdiction over any kinds of suits brought by ministers against religious institutions that related to their work. Ministers would be anyone who held an ecclesiastical position or who had any responsibility to teach church doctrine. A court would be able to look in a cursory manner to be sure that the label of minister was not a sham, but not do the more in-depth functional analysis that the Sixth Circuit did in this case to conclude that Ms. Perich was not a ministerial employee.
Several members of the court expressed concern with this categorical approach. It didn't seem wholly consistent with Employment Div'n v. Smith, in which the Court held that rules of general applicability that infringed upon religious practices would be constitutional so long as those rules were rationally related to a legitimate governmental interest. Moreover, it seemed too deferential to religious organizations' power to limit whistleblowing by employees. At the same time, it did not relieve the courts of having to decide who was a ministerial employee.
The federal government urged the Court to adopt a balancing approach, looking at the interest the government had in providing for the underlying cause of action to decide whether a ministerial exception would apply. Government interests in health, safety, and whistleblowing or the rule of law would be sufficiently great to override invocation of the exception in most circumstances, but interests in eradicating discrimination would not. Several members of the Court had concerns about this approach, as well. For some, this approach did not recognize the special interests in religion embodied in the First Amendment's Free Exercise and Establishment Clauses. Moreover in the answers to the questions, it seemed that this approach might privilege the doctrines of some religions, but not others.
Ms. Perich's attorney urged the Court to adopt the functional approach used by the Sixth Circuit as the only way to give effect to the decision in Smith and to recognize the important government interest involved in prohibiting retaliation for exercising legal rights. During his argument, the Court seemed most concerned in how to avoid looking into church doctrine in deciding the issue.
I won't speculate on how this will come out, but I do have some observations about this case. In the lower courts, the school did not argue that it terminated Perich because she failed to pursue internal dispute resolution channels; pursuit of those channels may have been required by church doctrine, and would have provided a reason based in religion for her discharge. The Sixth Circuit found that to be a crucial distinction. Before the Supreme Court, it appears that the school argued precisely that, also seeming to say that the Court could not examine that assertion to determine whether it was a pretext because Perich was a ministerial employee. The distinction between enforcement of the underlying antidiscrimination substantive law on the one hand and protection of the process through forbidding retaliation on the other seems highly important to at least some members of the court (*cough Kennedy cough*) even if not for others (*cough Scalia cough*).
More significant facts here that were not thoroughly hashed out in the argument: the school did not contest that the reason for firing Perich was her statement that she would sue after the school refused to reinstate her when she was no longer unable to perform her duties because of her disability; Perich taught without being "called" first, and only later became "called" without her duties changing; the church seemed to expand its argument before the Court to say that other teachers who were not "called" but who taught a religion class would also be ministerial employees; and Perich did not seek to be reinstated to teaching or to the "call," but sought instead damages for her discharge from teaching.
To see if these distinctions and facts make any difference in the rules the Court adopts, we'll have to stay tuned.
NLRB Delaying Notice Posting Requirment
The NLRB just announced that it is delaying the effective date of its notice posting rule until January 31, 2012. According to the announcement:
The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.
The new effective date of the rule is Jan. 31, 2012.
The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.
October 4, 2011
A New Entry For The Bad Boss Contest
This one from an Iowa-based chain of convenience stores. Owner William Ernst held contests among employees to guess who would be fired next. Ernst sent a memo that said:
“New Contest – Guess The Next Cashier Who Will Be Fired!!!
“To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Write their name [the person who will be fired], today’s date, today’s time, and your name. Seal it in an envelope and give it to the manager to put in my envelope.
“Here’s how the game will work: We are doubling our secret-shopper efforts, and your store will be visited during the day and at night several times a week. Secret shoppers will be looking for cashiers wearing a hat, talking on a cell phone, not wearing a QC Mart shirt, having someone hanging around/behind the counter, and/or a personal car parked by the pumps after 7 p.m., among other things.
“If the name in your envelope has the right answer, you will win $10 CASH. Only one winner per firing unless there are multiple right answers with the exact same name, date, and time. Once we fire the person, we will open all the envelopes, award the prize, and start the contest again.
“And no fair picking Mike Miller from (the Rockingham Road store). He was fired at around 11:30 a.m. today for wearing a hat and talking on his cell phone. Good luck!!!!!!!!!!”
Although several employees claimed to be so shocked by the memo that they quit, he was described as "the boss from hell." This developed into an unemployment case when those who quit sought benefits. Ultimately, an ALJ sided with the ex-employees because the contest was “egregious and deplorable” and created "an intolerable and detrimental work environment”--essentially concluding that this was a constructive discharge. This also provides a possible intentional infliction of emotional distress claim in some jurisdictions, although probably not a winner in most.
Hat Tip: Stuart West
Bye Bye (Pro) Basketball?
Talks between the NBA and the players union do not seem to be going well with the preseason and the first two weeks of the regular season (if no deal is reached by Monday) being the victims, so far. The dispute centers on how to split $4 billion in revenue (I bet a lot of labor negotiations wish they had that problem), with the sides reportedly $240 million apart.
It will be interesting to see how long this drags on. The league loses a lot of money from missed games ($200 million from the preseason alone). The payers do too, but unlike a lot of pro sports, the European basketball leagues provides an alternative venue for players to earn some money and to keep their skills sharp. And for marquee players, like Kobe Bryant, the pay could be quite good. This puts the players in a better spot than one might normally expect, so we'll see if the owners end up moving more in the next few weeks.
More on the Ministerial Exception and Hosanna-Tabor
In addition to the article by Caroline Mala Corbin I posted about earlier today, there are more of the articles from the Colloquy issue on Hosanna-Tabor. I'll steal straight from Paul Horwitz's post at Prawfsblawg:
Prawfs colleague and good friend Rick Garnett [first picture from the left margin, Notre Dame], along with Tom Berg [second picture, St. Thomas], Carl Esbeck [third picture, Missouri], and Kimberlee Colby [fourth picture, Christian Legal Soc'y], have posted their contribution to the Northwestern University Law Review Colloquy on the Hosanna-Tabor case (oral argument tomorrow!) on SSRN. It's titled Religious Freedom, Church-State Separation, and the Ministerial Exception. It joins Colloquy pieces by me [Paul Horwitz, fifth picture, Alabama] and Caroline Mala Corbin, with others to come; and while at SSRN, check out Chris Lund's [sixth picture, Michigan State] terrific general piece on the ministerial exception. Chris, Rick et al., and I all write in support of the ministerial exception, and Caroline criticizes it; that said, I think Caroline's piece is great, and although Chris's piece is a defense, it's also a very able general discussion of ministerial exception doctrine and justifications that can profitably be read by both supporters and opponents of the doctrine. I haven't read Rick et al.'s piece, but I read their brief and thought it was terrific.
. . . I'll chime in to recommend that you read [Rick's] piece, and to encourage those who are interested in the case to canvass all the pieces noted above. (All media inquiries, of course, should come to me directly--or, even better, to Chris Lund, whose piece really is terrific.) Those of us who are participating in the Colloquy (and, as I said, there are a couple of others to come, at least one of which, I believe, is critical) add our thanks to the editors there and our hope that the whole shebang will be up soon. Doubtless many of us will be posting reactions to the oral argument in the next couple of days. Enjoy! And, if I may add a personal note, good luck to Doug Laycock, who will be arguing the case for the church tomorrow.
I'll add, good luck to Cheryl Perich's attorney and to the EEOC/DOJ. If you are interested in more about the case, here you can find links to all of the important stuff at the Supreme Court. There are lots of amici, including law professors on each side, as you can probably tell from my earlier post and Paul's post.
Corbin on the Ministerial Exception and Hosanna-Tabor v. EEOC
In anticipation of the oral arguments tomorrow in Hosanna-Tabor Evangelical Lutheran School v. EEOC, Caroline Mala Corbin (Miami) has posted her essay, The Irony of Hosanna-Tabor Evangelical Lutheran School v. EEOC, forthcoming in Northwestern's online Colloquy. Here's the abstract:
The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a school teacher named Cheryl Perich should be considered a minister. The success of Perich’s Americans with Disabilities Act retaliation claim turns on the answer. If she is not a minister, she would probably win. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.
In fact, neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. To start, as announced in Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the Americans with Disabilities Act is a neutral law of general applicability. Arguments that the “church autonomy” cases require courts to defer to church hierarchy and that these cases control instead of Smith ignore Jones v. Wolf, the last church property dispute decided by the Supreme Court. Jones v. Wolf explicitly rejects blanket deference to religious institutions in matters of internal governance. It further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether Perich is a minister will entangle courts in religious doctrine more than simply adjudicating her retaliation claim.
You may recognize the gist from the amicus brief that Caroline and Leslie Griffin (Houston) submitted in the case. It's good prepwork for tomorrow's argument and a compelling read.
October 3, 2011
Hirsch on Boeing & the NLRB
Recently, Boeing decided to locate a new, non-union, manufacturing line in South Carolina, rather than at its unionized facility in Washington State. In the aftermath of that decision, elected officials have publicly castigated a federal agency, challenged that agency's independence and even threatened one agency official with contempt of Congress. Unfortunately, these actions have largely been based on inaccuracies about the case.
... Boeing and its supporters argue that the NLRB is asserting an unprecedented power to stop companies from deciding where to operate. Reality, however, falls far short of this claim.
Most significantly, the NLRB has not said anything about the legality of Boeing's actions. ...Thus far, the only thing that has happened is that the NLRB's general counsel - a separate appointee whose office investigates and litigates cases - has found enough evidence to support the filing of a complaint against Boeing, which will be litigated before an administrative law judge. Neither that judge, nor the NLRB, has made findings on the facts or law of the case.
Moreover, contrary to the claims of Boeing's supporters, the general counsel has not sought to close down the South Carolina facility and move those jobs to Washington. It is true that the general counsel will request that Boeing give the Washington employees any work that was moved illegally to South Carolina. But Boeing would remain free to give its South Carolina facility as much work as it wants, as long as it does so for valid reasons.
Recently Published Scholarship
- Sandra F. Sperino, Rethinking Discrimination Law, 110 Michigan L. Rev. 69 (2011).
October 2, 2011
The House Still Doesn't Like the NLRB
The House Appropriations Committee just released a draft funding bill that contains these nuggets (quoting from the press release):
- The bill includes $234 million for the NLRB - a decrease of $49 million (-17%) below last year`s level and $54 million (-19%) below the President`s budget request.
- In addition, the legislation includes several provisions intended to stop the NLRB`s harmful anti-business regulations that would impose additional and excessive costs on American businesses, increase job loss, and further hinder economic growth. These provisions include:
- a prohibition on establishing micro-unions;
- a prohibition on eliminating secret ballot elections;
- a prohibition on ``quick-snap elections``;
- a prohibition on the implementation of ``e-Card Check,`` which could promote coercion in union elections; and
- a prohibition on aggressive regulatory overreach on the small business community.
Reading this list makes me think that the Board probably wishes that it had a fraction of the power that opponents think it has.
Hat Tip: Patrick Kavanagh
The NY Times has a story on Andy Roddick looking into organizing professional tennis players into a union. Because the players are all independent contractors (or at least, I'm assuming they are), we're not talking about an NLRA-sanctioned collective-bargaining organization. However, the players have had a lot of gripes recently about overburdened schedules, playing conditions at tournaments, and other things. Although not a tradtional union, Roddick's thought about the players' ability to exert influence over these matters are typical of most unions. Things are still preliminary, so we'll have to see what happens in a sport in which the individual is the focus.
Trade Secret Take-Down: Hooters vs. Twin Peaks
Who says employee trade secret disputes have to be dry and boring affairs? From the Huffington Post:
WASHINGTON -- Hooters, the restaurant chain famous for its scantily clad Hooters Girls, sued the partner of an upstart rival in Georgia federal court this week, accusing the company developing Twin Peaks restaurants and a former Hooters executive of stealing trade secrets in their bid to take on the “delightfully tacky yet unrefined” restaurant chain.
In their lawsuit, Hooters claims that Joseph Hummel, former Hooters vice president, jumped ship to help develop the similarly themed Twin Peaks restaurants (motto: “Eats, Drinks, Scenic Views”) in July and took “sensitive business information” with him. The alleged trade secrets apparently involve more than just skimpy waitress outfits. According to the suit, in the weeks leading up to his departure to Twin Peaks development partner La Cima Restaurants, Hummel downloaded and emailed to his private account a “substantial volume” of Hooters documents, including plans related to management, recruitment, distribution and sales.
If the allegations are true, Hooters has a strong case to enjoin Hummel and Twin Peaks from competing against them. Unclear, whether any convenants not to compete are involved in this affair.
In any event, all this litigation might mean there will be fewer "scenic views" of the human variety in Georgia when all is said and done.
Hat Tip: Joe Seiner