November 26, 2011
NBA Labor Dispute Ends; Owners Appear to Win Big
The New York Times reports:
With handshakes, sighs and weary smiles, the N.B.A. and its players resolved a crippling labor dispute, allowing them to reopen their $4 billion-a-year business in time for the holidays. A 66-game season will start on Christmas Day, ending the second-longest lockout in league history.
The deal was reached at about 3 a.m. Saturday, on the 149th day of the lockout, after a final 15-hour bargaining session at the law offices of Weil, Gotshal and Manges.
On nearly every count, the deal favors the owners, who had sought all along to overhaul the system. The players made significant concessions, including a reduction of up to $300 million year in salaries, $3 billion over the life of the agreement.
The deal will feature a 50-50 split of revenues, but with the possibility of the players making as much as 51 percent or as little as 49, depending on whether the league exceeds or falls short of projections. The players had been earning 57 percent.
November 25, 2011
Last Call for L&S-Hawai'i
Marley Weiss (Maryland) is issuing the last call for papers for the CRN 8 - Labor Rights sessions at Law and Society's Hawai'i meeting, June 5-8, 2011. If you'd like to be included, please email her immediately.
LEL Holiday Gift Ideas
Roundtable on NFL Labor Dispute
Roger Ian Abrams (Northeastern) et al. have just posted on SSRN A Roundtable Discussion for the Digital Age: Brady v. NFL. This roundtable discussion, still pertinent given the current NBA labor dispute, includes Ed Edmonds (Notre Dame), Gabe Feldman (Tulane), Clark Calvin Griffith, Robert A. McCormick (Michigan State), Matt Mitten (Marquette), Gary Roberts (Tulane University), Stephen F. Ross (Penn State). It's at 29 Entertainment and Sports Lawyer (2011); here's the abstract:
This is a digital roundtable discussion, conducted through e-mail during the 2011 NFL lockout, between several leading sports, labor, and antitrust law professors and professionals discussing aspects of that lockout. At the heart of the debate was the Brady v. NFL lawsuit.
Moberly: Empirical Study of Whistleblower Policies
Richard Moberly (Nebraska College) & Lindsey Wylie have just posted on SSRN their chapter (forthcoming in WHISTLEBLOWING AND DEMOCRATIC VALUES) An Empirical Study of Whistleblower Policies in United States Corporate Codes of Ethics. Here's the abstract:
Companies have issued Codes of Ethics (also called Codes of Conduct) for decades, and these Codes increasingly have contained provisions related to whistleblowing. For example, Codes often encourage or even require corporate employees to report incidents of misconduct they witness. Code provisions describe the types of misconduct employees should report and provide numerous ways for employees to make reports. Moreover, companies use Codes to promise employees that they will not retaliate against whistleblowers. Indeed, because these whistleblowing provisions have become an important part of a corporation’s internal control and risk management systems, they merit closer examination to determine exactly what they require and promise. Accordingly, this chapter describes the results of the first comprehensive empirical study of whistleblower provisions contained in United States corporate Codes of Ethics.
November 23, 2011
British Consider Further Restrictions on Unfair-Dismissal Rights
- Allowing small employers to fire employees without legal oversight, if the employer pays the employee a severance.
- Making people work for two years before they could make a claim for unfair dismissal - up from one year at present.
- Reducing the 90 day consultation period for 100+ layoffs at a single establishment.
- Allowing employers to have frank off-the-record conversations about poor performance.
- Requiring all Tribunal Claims to go to ACAS [Advisory, Conciliation and Arbitration Service] before being allowed to go to Tribunal (at present claims go to Tribunal and ACAS are involved after the claim has been sent to the Tribunal unless the parties ask ACAS to become involved in pre-claim conciliation on their own initiative).
- Creating a rapid resolution scheme to resolve simple cases in less than 3 months.
Pivateau on the Arbitration of Statutory Claims
Griffin Toronjo Pivateau (Okla. St. Business) has just posted on SSRN his article Private Resolution of Public Disputes: Employment, Arbitration, and the Statutory Cause of Action (forthcoming Pace L. Rev.). Here's a summary:
I wrote this paper in response to the Supreme Court's decision in Rent-A-Center v. Jackson. The aspect of that decision that most struck me was the Court's continued insistence on viewing arbitration in employment through a contractual perspective ("the employee made a deal and should stick to it"). This struck me as disingenuous. There are numerous aspects of the employment relationship that are not subject to contract -- wages, hours, workplace safety, antidiscrimination laws. So why then, for arbitration, a slavish devotion to contract principles?
The "simple" answer to this question, of course, is Section 2 of the FAA, which provides that arbitration agreements are "...valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." But that doesn't answer the question of why this statutory provision is interpreted as overriding subsequent statutory provisions which, for example, grant a jury-trial right to Title VII plaintiffs.
Chicago Restatement Conference
I'm just back from Chicago where I was fortunate enough to be invited to the Experts' Meeting on the new Restatement. (Rick Bales posted the Conference Agenda a few days ago, and Cynthia Nance [nancecy] tweeted from the Conference).
As everyone on Workplace Prof knows, the ALI's in-progress Restatement of Employment Law has been highly controversial, and some criticism continued at our meeting. On the other hand, participants from the practicing bar (Joe Garrison and Paul Tobias) thought that, while not perfect, the Restatement was overall proving helpful to employee rights. In any event, the project is nearing, if not completion, at least the final stages, with two major chapters -- Privacy and Remedies -- still mostly up for grabs.
Privacy (which includes Defamation and Autonomy) has made a lot of progress thanks to the creative work of Matt Bodie, but still is subject to potential change on a number of important points. While Matt Finkin remains deeply skeptical of the whole enterprise, he identified a number of areas in the current draft where the project can be improved.
Remedies, which is Sam Estreicher's responsibility, is still in the formative stage and I know Sam would welcome suggestions on what areas it might address, given that the Restatement is focused on common law questions.
Perhaps needless to say, the Conference generated a number of suggestions on these areas, not to mention revisiting a number of other issues. Ken Dau Schmidt reviewed the history of the Restatement from the perspective of the Labor Law Group. As for the duty of loyalty question, that generated so much debate on the floor of the ALI, Mike Selmi, Alan Hyde, and Catherine Fisk were all critical in different ways of the balance the current draft has taken of loyalty and non-competes.
As for remedies, Alan suggested that the law ought to better compensate the harm caused by loss of a job; for example, currently such recovery for economic harm rarely accounts for the on-going consequences of the loss of a job. And I addressed the "faithless servant" doctrine. Perhaps not surprisingly, the law, which limits employee remedies against employers to compensation, defined narrowly, sometimes allows employers remedies against employees who breach their duty of loyalty (without regard to whether they are at will or have a term contract) that can far exceed any harm the employee's breach may have caused.
Still on remedies, Bob Covington argued that most areas of employment common law don't raise distinctive remedies questions, and Marley Weiss argued for a unified theory of employmenet law remedies that would reconsider basic questions such as the common law's historic refusal to order reinstatement.
While it's impossible to sum up a day and a half of intensive discussions among very knowledgeable people, I think there was consensus that the tension between "restating" and improving the common law, which exists in any area, was especially problematic in the employment arena. For example, as Matt Finkin argued, there is very little common law protective of employee privacy, but drawing on constitutional and statutory sources to fashion a coherent normative system is in tension with a "restatement" project.
I know I speak for everyone in attendance in thanking Lea VanderVelde for herding this particular collection of cats and Northwestern (Kim Yuracko) and Loyola Chicago (Mike Zimmer) for hosting us so impressively. Lea also featured several of her students who created impressive wikis to help assess the state of the at-will doctrine across the various states. Finally, our discussion was definitely improved by the reactions of two representatives (Judge Laura Stith of the Missouri Supreme Court and Justice David Wiggins from Iowa) fom the sector to whom Restatements are most pointedly directed, the judiciary
November 22, 2011
Recently Published Scholarship: SDLR ERISA Symposium
56 South Dakota Law Review (2011)
- Roger M. Baron, "Consumer Protection" and ERISA, p. 405.
- Roy F. Harmon, An Assessment of New Appeals and External Review Processes - ERISA Claimants get "Some Kind of Hearing", p.408.
- Robert E. Hoskins, Equitable Estoppel as a Remedy Under ERISA, p. 456.
- John Morrison and Jonathan McDonald, Exorcising Discretion: The Death of Caprice in ERISA Claims Handling, p. 482.
- Radha A. Pathak, Discretionary Clause Bans & ERISA Preemption, p. 500.
- Peter K. Stris and Victor A. O'Connell, Enforcing ERISA, p. 515
- Amy Thompson, Ask and You Shall Receive: ERISA's Remedies for Non-Disclosure, p. 254.
- Tiffany R. Timmerman, Hardt v. Reliance Standard Life Insurance Co.: Breathing New Life into Claimant's Ability to Obtain Attorney's Fees Under ERISA's Civil Enforcement Provision, p. 549.
November 21, 2011
Recently Published Scholarship
- Andrew Kenny, The Meaning of "Because" in Employment Discrimination Law: Causation in Title VII Retaliation Cases after Gross, 78 U. Chi. L. Rev. 1031 (2011).
A New Face for Labor
Bill Herbert sends us this link to the NYT story Redefining the Union Boss:
Troublemaker, better known as Sandy Pope, is the first woman to run for the presidency of the Teamsters, against the powerful, three-term incumbent, James P. Hoffa.
Odds are that Ms. Pope will lose — final results are due today. But whatever the outcome, Ms. Pope represents a new face of labor, one that increasingly is female. In this “We are the 99 percent” moment, when corporate profits are up and wages flat, a handful of women are challenging the old, mostly male world of union bosses.
Unions, of course, have been in retreat for years. But Ms. Pope and several other women, notably Rose Ann DeMoro, of National Nurses United, and Mary Kay Henry, of the Service Employees International Union, are pushing back. Their ascendance has rekindled hope that organized labor maybe, just maybe, could stage a comeback.
666 Days Accident-Free!
But not discrimination-free. Dennis Nolan sends us a link to this post from The Volokh Conspiracy:
Here’s what is alleged in the Complaint in Hyatt v. Berry Plastics Corp. (N.D. Ga. filed Nov. 8, 2011) — recall that these are just the plaintiff’s allegations:
- Hyatt’s employer kept a safety calendar that marked the number of consecutive days that the workplace was accident-free. Employees were required “to write the number off of the safety calendar onto a sticker and are to wear the sticker throughout the work shift” (I’m quoting the Complaint here).
- “As the number of safely worked days crept into the range of the 600’s, Plaintiff began discussing with his co-workers and supervisors that he could not wear the number 666 as this number was the sign of the beast and his religious beliefs forbid him from wearing this number. Plaintiff sincerely believed that wearing a sticker with the number ‘666’ on it would be abandoning his beliefs and his God, and would subject Plaintiff to damnation and would force Plaintiff to abandon his religious beliefs.”
- Plaintiff asked a manager for a religious accommodation on day 666, but the manager allegedly responded that “Mr. Hyatt’s beliefs were ridiculous, and that Mr. Hyatt could go to work with a ‘666’ on his safety sticker or face a three (3) day suspension.” Plaintiff decided to take the three-day suspension, but was then fired for refusing to work on day 666.
Plaintiff is now suing, claiming the employer violated Title VII of the Civil Rights Act by refusing to reasonably accommodate his beliefs, and retaliated against plaintiff for asserting his rights.
Cox on Pregnancy & the ADA
Jeannette Cox (Dayton) has just posted on SSRN her article (forthcoming Boston College L. Rev.) Pregnancy as 'Disability' and the Amended Americans with Disabilities Act. Here's the abstract:
The recent expansion of the ADA’s protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect.
Drawing on the social model of disability, this article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social model defines “disability” not as an impairment located within an individual’s body but as the interaction between the individual’s body and her social environment. Within this framework, workers may experience pregnancy, a healthy biological state, as a workplace “disability.” Accordingly, now that workers with temporary physical limitations comparable to pregnancy may receive ADA accommodations, courts should conclude that the ADA’s goal to reshape the workplace to accommodate previously excluded persons extends to pregnancy.
Hirsch's Hat Trick
Jeff Hirsch (UNC) has just posted a trio of articles on SSRN:
- Employee or Entrepreneur?, 68 Wash. & Lee 353 (2011).
- Labor and Employment Law Issues in the Daimler-Chrysler Merger, chapter in MAKING THE PIECES FIT: AN ANALYSIS OF THE DAIMLER-CHRYSLER MERGER, Maurice Stucke, ed., Carolina Academic Press, 2012.
- Nonemployee Access to Worksites: A State or Federal Solution?, 12 Transactions 175 (2010).