Friday, March 23, 2012

Ethical Allegations Against NLRB Member Flynn


UPDATE:  The Wall Street Journal also has an artice on this matter, with some additional information, including the fact that Rep. Miller has referred the matter to AG Eric Holder, statements by Kirsanow that "I received no inside information whatsoever," and a note that Schaumber currently advices Mitt Romney on labor matters (neither Schaumber nor the Romney campaign would comment).]

The NLRB's IG just released a report into alleged ethical breaches by NLRB Member Flynn and found them to be meritorious.  They involve giving help and condifential information to former NLRB Member Schaumber and Kirsanow for some of their pending litigation when Flynn was Chief Counsel to Member Hayes; the IG also found that Flynn wasn't truthful during the investigation.  He also sent information to attorneys at his former firm, Crowell & Moring. You should definitely read the report, which goes through a long list of correspondence [ Download Flynn Report], but the Washington Post summarizes some of the bigger findings:

The board’s inspector general said Terence Flynn violated ethics rules by sharing confidential details on the status of pending cases and the likely votes of other members before decisions were released. A report from Inspector General David Berry also faulted Flynn for a “lack of candor” during the investigation. . . .

Flynn told attorneys representing clients before the board about pre-decisional votes, the early positions of other members, status of cases and the analysis of a pending rulemaking that was planned to streamline union elections, the report said.

In one instance, the report said, Flynn even helped an outside lawyer conduct research on how to attack a board rule that requires businesses to put up posters explaining union rights. . . .

I don't know what, if any, penalties Flynn could face--or for that matter Schaumber and Kirsanow who should've known that the assistance was improper.  The actions with Schaumber were particularly extensive.  There was less involvement with Kirsanow, but it's notable that he did not respond to the IG's requests for an interview.  In short, these are serious ethical violations and leaves a black mark on all three of these NLRB members.

Hat Tip:  Patrick Kavanagh


March 23, 2012 in Labor and Employment News | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 21, 2012

Wasserman on Hosanna-Tabor and Jurisdiction

Faculty_WassermanHowardAnd in keeping with the federal courts/Supreme Court theme, Howard Wasserman (Florida International) has a really interesting essay on the Supreme Court's holding in Hosanna-Tabor Lutheran School v. EEOC that the ministerial exception is not jurisdictional in PENNumbra: Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exception. From the introduction:

Hosanna-Tabor correctly characterized the ministerial exemption as a limitation on the merits of the employment discrimination claim.  I repeatedly argued for this position before the Court entered the mix, including in this Essay, which was written and accepted for publication in October 2011 (before the Court discovered unanimity and thus was able to decide the case fairly quickly).  But the Court’s jurisdictionality footnote was entirely conclusory, failing to explain why the issue controls whether the plaintiff’s allegations entitle him to relief rather than whether the court has power to hear the case.

It thus remains to unpack why the exemption is, in fact, a merits doctrine.  First, doing so demonstrates the correctness of the conclusion in  Hosanna-Tabor, putting to rest any normative dispute on the issue.  Second, mischaracterization of the ministerial exemption resulted from the same category errors that plague characterization of other legal issues; this issue illustrates nicely the routine conflation of jurisdiction and merits and courts’ failure to maintain clean lines between doctrines and underlying concepts. While the Court’s conclu-sion that the exemption is merits-based might be enough to signal lower courts on future jurisdictionality issues, actual analysis and explanation may better enable them to understand and recognize the limits of what goes to jurisdiction and, inversely, the breadth of what goes to substantive merits.

This Essay, I hope, provides that analysis.

I haven't had a chance yet to read the whole thing carefully, but what I've seen so far is a great discussion of an issue vexing to courts, litigants, and scholars alike.


March 21, 2012 in Commentary, Disability, Employment Discrimination, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Cunningham-Parmeter on Federalism and Immigration

Cunningham_web-1-10Apropos of yesterday's federalism decision in the FMLA/11th Amendment context, Keith Cunningham-Parmeter (Willamette) has a nice piece on federalism in immigration laws: Forced Federalism: States as Laboratories of Immigration Reform. Here's the abstract:

This Article questions the experimental value of state immigration laws. Analyzing the Supreme Court’s major decisions in this area, including Chamber of Commerce v. Whiting, the Article explains why state immigration laws fail to satisfy two necessary conditions of effective experimentation: internalization and replication. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms — far from the type of diverse testing associated with true innovation. 

Today’s state immigration laws also fail to internalize costs — another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states but are felt by the nation as a whole. 

Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.

Very timely issue and thoughtful piece!


March 21, 2012 in Employment Common Law, Employment Discrimination, Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2012

States Immune from Suit for FMLA Violations Related to Self-Care

SupctThe Supreme Court issued it's opinion in Coleman v. Md. Ct. App. today, holding that Congress lacked the power to abrogate state immunity from suits for damages for violations of the FMLA's self-care provisions. Here's the syllabus:

JUSTICE  KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE  ALITO, concluded that suits against States under the self-care provision are barred by sovereign immunity.  Pp. 3−12. 

(a) Under the federal system, States, as sovereigns, are immune from damages suits, unless they waive that defense.  See, e.g., Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72−73. Congress may also abrogate the States’ immunity pursuant to its powers under §5 of the Fourteenth Amendment, but it must make that intention “unmistakably clear in the language of the statute,” Hibbs, supra, at 726.  It did so in the FMLA.  Congress also “must tailor” legislation enacted under §5 “to remedy or prevent” “conduct transgressing the Fourteenth Amendment’s substantive provisions.”   Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639. “There must be a congruence and proportionality between the injury to be prevented or remedied and  the means adopted to that end.” City of Boerne v. Flores, 521 U. S. 507, 520. Pp. 3−5. 

(b) The sex-based discrimination that supported allowing subparagraph (C) suits against States is absent with respect to the self-care provision. Petitioner’s three arguments to the contrary are unpersuasive.  Pp. 5–12.

(1) Petitioner maintains that the self-care provision addresses sex discrimination and sex stereotyping.  But the provision, standing alone, is not a valid abrogation of the States’ immunity from suit.  At the time the FMLA was enacted, there was no evidence of such discrimination or stereotyping in sick-leave policies.  Congress was concerned about the economic burdens imposed by illness-related job loss on employees and their families and about discrimination based on illness, not sex.  Although the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses, the provision, as a remedy, is not congruent and proportional to any identified constitutional violations.  When the FMLA was enacted, Congress had no evidence that States were excluding pregnancy-related illnesses from their leave policies.  Pp. 6–7.

(2) Petitioner also argues that the self-care provision is a necessary adjunct to the family-care provision sustained in Hibbs.  But his claim—that the provisions work in tandem to ensure the equal availability of total FMLA leave time to women and men despite their different leave-usage patterns―is unconvincing and does not comply with the requirements of City of Boerne. Also, there are no congressional findings of, or evidence on, how the self-care provision is necessary to the family-care provisions or how it reduces employer discrimination against women. Pp. 8–11.

(3) Finally, petitioner contends that the self-care provision helps single parents keep their jobs when they get ill.  The fact that most single parents happen to be women demonstrates, at most, that the self-care provision was directed  at remedying neutral leave restrictions that have a disparate effect on women. However, “[a]lthough disparate impact may be relevant evidence of . . . discrimination . . .  such evidence is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.”  Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 373.  Because it is unlikely that many of the neutral leave policies affected by the self-care provision are unconstitutional, the scope of the self-care provision is out of proportion to its supposed remedial or preventive objectives. Pp. 11−12. 

JUSTICE SCALIA adhered to his view that the Court should abandon the “congruence and proportionality” approach in favor of one that is properly tied to the text of §5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment.  Outside the context of racial discrimination, Congress’s §5 power should be limited to the regulation of conduct that itself violates the Fourteenth Amendment and thus would not reach a State’s failure to grant self-care leave to its employees. Pp. 1−2.

Justice Ginsberg, Breyer, Sotomayor, and Kagan would have held that the self-care provisions validly enforce the right to be free from gender discrimination.

I haven't had time to read the opinion carefully, but the result is not much of a surprise. One particularly interesting piece is that Justice Scalia seems to be continuing his drive to limit Congress's powers to enact anti-discrimination legislation that is in any way different from what the Fourteenth Amendment provides, although he does apparently see some wiggle room for race discrimination legislation.

Update: Michael Waterstone (Loyola L.A.) has some nice analysis at Prawfsblawg, and I've written several things about the 11th amendment issue and federalism, like this, this, and an article forthcoming in the Wisconsin Journal on Law, Gender and Society that I'll post on SSRN as soon as it's ready for prime time.


March 20, 2012 in Employment Discrimination, Worklife Issues | Permalink | Comments (3) | TrackBack (0)

Zelinsky on the Individual Mandate, the Parsonage Allowance, and the Religious Exemptions for FICA and Social Security

ZelThat's a mouthful of a headline.  Anyway, Ed Zelinsky (Cardozo) has just posted on SSRN his article Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes.  Here's the abstract:

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion from gross income of clerical housing allowances.

I ultimately find unpersuasive the indictment of Section 107 as constitutionally entangling. For the same reasons, I also conclude that the religious exemptions of the Social Security taxes and of the individual health mandate pass First Amendment muster. In the modern world, extensive contact between tax systems and religious institutions is unavoidable. Whether religious entities and actors are taxed or exempted, there are inevitable tensions between the contemporary state and sectarian institutions and their personnel. Whether religious entities and actors are taxed or exempted, there are no disentangling alternatives, just imperfect trade-offs between different forms of entanglement.

Thus, Section 107 and the exclusion from gross income it grants to clerical recipients of housing and parsonage allowances are constitutionally permitted, though not constitutionally required, responses to the problems of entanglement inherent in the relationship between modern government and religion. Similarly, the Code’s sectarian exemptions from the individual health care mandate and from the FICA and self-employment taxes are acceptable, though not obligatory, means under the First Amendment of managing the inevitable contacts and tensions between the contemporary state and the religious community.

However, as a matter of tax policy, the exclusion of Section 107(2) for cash parsonage allowances stands on weaker ground than does the exclusion of Section 107(1) for in-kind housing provided to “minister[s] of the gospel.” The taxation of such cash allowances, in contrast to the taxation of housing provided in-kind, does not involve problems of valuation or of taxpayer liquidity and is thus more practicable as a matter of tax policy.


March 20, 2012 in Religion, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, March 19, 2012

Fired for Wearing Orange

OrangeJoe Slater (Toledo) sends us word of this story from the SunSentinel;

Four workers tell the story this way: For the past few months, some employees have worn orange shirts on pay-day Fridays so they'd look like a group when they went out for happy hour.

This Friday, 14 workers wearing orange shirts were called into a conference room, where an executive said he understood there was a protest involving orange, the employees were wearing orange, and they all were fired.

On these facts,it seems fairly clear that the employer thought the employees were engaging in protected, concerted activity, even if perhaps they weren't.


March 19, 2012 in Labor Law | Permalink | Comments (11) | TrackBack (0)

Recently Published Scholarship


  • Kermit Roosevelt III, Not as Bad as You Think: Why Garcetti v. Ceballos Makes Sense, 14 U. Pa. J. Const'l L. 631 (2012).
  • Mark E. Berghausen, Intersex Employment Discrimination: Title VII and Anatomical Sex Nonconformity, 105 Nw. L. Rev. 1281 (2011).


March 19, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 18, 2012

The NFL Salary-Cap Side Agreement

NFLThanks to Dan Sydner's, owner of Washington, in-you-face maneuvers during the lock-out, there's been a lot of attention to the new salary cap agreed to by the NFL and players' union.  The new cap was a bit higher than the previous one, but apparently lower than a few of the highest-spending teams would prefer.  The interesting feature for labor law purposes is that the new cap was not part of the new CBA; instead, the parties agreed to it later, as part of a side agreement that was not brought to the team owners or the union's executive committee of player representatives.  I'm unaware of any internal rules for either party that makes that a problem, but it could make future agreements harder to make if there's significant blow-back.

Hat Tip:  Alex Long


March 18, 2012 in Labor and Employment News | Permalink | Comments (4) | TrackBack (0)