November 11, 2011
Recently Published Scholarship
- Katherine T. Vukadin, Delayed and Denied: Toward an Effective ERISA Remedy for Improper Processing of Healthcare Claims, 11 Yale J. Health Policy, Law, & Ethics 331 (2011).
- Julie Goldscheid, Disparate Impact's Impact: The Gender Violence Lens, 90 Oregon L. Rev. 33 (2011).
- Judith Resnik, Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78 (2011).
- Shannon Byrne, Weaning Ohio Employers Off of Lactation Discrimination: The Need for a Clear Interpretation of Ohio's Pregnancy Discrimination Act Following Allen v. Totes/Isotoner Corp., 59 Cleveland St. L. Rev. 265 (2011).
November 10, 2011
- The NLRB released it fiscal year case production figures this week. The number of decisions (272 ULP cases; 96 representation cases) rose 17$ from the previous year--no surprise given the fluctuations in Board members during that time. The release also provides some of the particualrly important cases and other actions during the year.
- The Hill has just published a story recounting pressure that S.C. Sen. Lindsey Graham put on the NLRB's Acting GC, Lafe Solomon. It's not a surprise, but the story--which uses Solomon's notes--gives a partial picture of the level of pressure that Graham and Boeing were putting on the Board (including Graham's threat that if the complaint was issued, he'd going after the Board "guns full-a-blazing"). I'd still like to see more of an account of what Boeing's precise role in this campaign has been, although I'm not holding my breath waiting to actually see anything else.
- American Rights At Work gives a rundown of attacks on the Board. They obviously don't like them, but no matter your view of the NLRB, the embedded chart is a useful summary of the legislative action against the Board this year.
Hat Tip: Patrick Kavanagh
New ALI Members
Among the 52 newly selected members of the American Law Institute are several labor/employment folks. Many congratulations to Matt Bodie (St. Louis), Ken Dau-Schmidt (Indiana), Orly Lobel (San Diego), Paul Mollica (Outten & Golden), and Lawrence Rosenthal (NKU Chase).
November 8, 2011
Ohio Anti-Collective Bargaining Law Repealed
Today, Ohio voted on a ballot measure to repeal a new law that restricted public sector collective bargaining: the vote in favor of repeal won 62%-38% (with 75% of precincts reporting). Organized labor obviously sees this as a huge win and perhaps a signal of what could happen during an attempt to impeach Wisconsin's governor. The vote margin is especially impressive in comparison to another ballot measure that bars all health care mandates, which is winning 66%-34% (we'll ignore the constitutional questions of that one).
Update on Knox v. SEIU
Yesterday, the Supreme Court refused to grant a motion to dismiss Knox v. SEIU (this year's union dues case) and, instead, deferred the issue until the merits argument. Apparently, the union sent a notice to employees stating that it had complied with the District Court's order, then argued that this made the case moot. We'll have to see if the Supreme Court agrees.
On Bullying & Harassment
This week, the American Association of University Women released information from a study that said that almost half of students in grades 7-12 have experienced sexual harassment in the last school year. Although more girls than boys reported being the target of sexual harassment at school, defined by the nonprofit research organization as “unwelcome sexual behavior that takes place in person or electronically,” boys and girls alike were identified across the board as harassers and victims. Rumors and jabs about students’ promiscuity and sexual orientation looked to be a significant part of the reported behavior, and victimized students reported deleterious tangible effects of the harassment that resulted in physical ailments and missed school days.
It is very interesting that most of the concentration of awareness, prevention efforts, and campaigns around schools has dealt primarily with the problem of bullying, when, in fact, the nature of the bullying has apparently been so overwhelmingly sexualized and gendered. This is especially ironic when one notes the fact that in the workplace, bullying is wholly lawful, while sexual harassment may result in corporate liability. Even more ironic and unfortunate, because sexual orientation is not a protected class status under federal law, many courts have rejected harassment claims made by homosexuals because although in many cases, they are being abused because of their failure to conform to gender norms, the courts see them as trying to advance claims that are ultimately not cognizable. Referring to someone’s sexual orientation (actual or perceived) as the reason for an adverse employment action is similarly seen as lawful under federal law. Moreover, in all but a few courts, “generalized vulgarity,” even that of a somewhat sexual nature, so long as it is not directly targeted at one sex, is seen as lawful as well.
Grande or Venti?
The Mail Online, via PJH Law Blog, reports that saleswomen of the Scandinavian lingerie company Change are suing the company for requiring them to reveal their bra size on their name tag. Said one employee: "We have dirty old men coming into the shop looking at my cup size." Change's CEO says the policy was designed to show shoppers the range of sizes it has to offer; "I don't get why this would be seen as demeaning in any way."
November 7, 2011
Seton Hall's 2011 Forum
Thanks to Susan Bisom-Rapp for insisting on the group picture, this photo captured for posterity the twelve participants in Seton Hall's Sixth Annual Employment and Labor Law Forum on October 28-29.. As you can see from all the smiles, the Forum itself was a big success. We're downplaying the almost unprecedented October snowstorm that disrupted the return trips of a number of visitors. Mike Zimmer, for example, ended up bedding down on one of the couches in our Faculty Library. Everybody else got home Saturday or found a hotel.
First row: me, Ariana Levinson, Deborah Eisenberg, Mike, Elaine Shoben. Second row: Deborah Brake, Jeannette Cox, Tristin Green, Susan, Michael Waterstone, Sachin Pandya, and Tim Glynn.
The papers considered were:
Pregnancy as “Disability” and the Amended Americans with Disabilities Act
The Amicus Strategy: How the Department of Labor Establishes Policy in the Courts
Deborah Thompson Eisenberg
What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims
The Puzzle of the Employee-Misconduct Defense in American Work Law
Sachin S. Pandya
Keep an eye out for the final versions, soon coming to a law review near you!
Seton Hall is extraordinarily thankful for the invaluable contributions of our outside commentators, Susan Bisom-Rapp, Deborah L. Brake, Elaine W. Shoben, and Michael E. Waterstone. As usual, the depth and breadth of the discussion was amazing.
Recently Published Scholarship
- Stacy A. Hickox, Employer Liability for Negligent Hiring of Ex-Offenders, 55 St. Louis U. L.J. 1001 (2011).
- Oliver T. Beatty, Workers' Compsnation and Hoffman Plastic: Pandora's Undocumented Box, 55 St. Louis U. L.J. 1211 (2011).
- Michael Prasad, Why Point of Hire Fees Should Be Paid by the Employer, 33 W. New England L. Rev. 817 (2011).
- Thomas Conner, The ADA: The 5th Circuit's Narrow Definition of "Services", 64 SMU L. Rev. 757 (2011).
- Scott W. Thomas, Employment Law: The 3d Circuit's Holding that Employees' Unsolicited Internal Complaints Are Not Protected Under ERISA Stops Whistleblowers in Their Tracks, 64 SMU L. Rev. 787 (2011).
November 6, 2011
NBA Talks Continue To Heat Up
The acrimony in the NBA labor talks looks to be ramping up. Two recent stories in the New York Times shows how hardliners on both the owners' and players' sides makes the likelihood of an imminent deal unlikely (although you never know). On the players' side, as we've noted, one group is threatening a decertification drive if the union agrees to less than 52.5% of league revenues. On the owners' side, a group is insisting on no more than 47% for the players (including now-owner Michael Jordan, who apparently isn't planning on attending any more former player picnics). Moreover, according to reports no owners are willing to give the players more than 50%. Now, the owners have given the players four days to accept a 50-50 split and significant caps on salaries--if not, the owners will impose a 47% share for players, also with a salary restrictions.
Either some group is going to have to bend or we're not going to see any professional basketball for a while.