March 31, 2012
Do English-Only Rules Violate Section 7?
Lauren Weinstein (Harvard '12) has posted on SSRN her student article (2012 Harv. CR-CL LR) The Role of Labor Law in Challenging English-Only Policies. Here's the abstract of this sensible article:
Policies requiring employees to speaking English only in the workplace disadvantage bilingual and non-English speaking employees. Employees typically challenge these policies under Title VII's prohibition on discrimination on the basis of national origin, however, those challenges have been largely unsuccessful due to (i) permissive business justification analysis, and (ii) lack of deference to EEOC guidelines prohibiting linguistic discrimination.
This article proposes that English-only policies violate Section 7 of the NLRA, which protects the right to communicate at the workplace. Because English-only policies naturally interfere with the right of some employees to communicate in the language in which they are most comfortable they can constitute a formidable obstacle to unionization efforts. Moreover, challenges under the NLRA may have a higher likelihood of success because the business justification analysis is more demanding under the NLRA, and there is no deference problem given that Section 7 protections are well-established under Supreme Court precedent. Despite some of the shortcomings of the NLRA, namely a lackluster remedial regime, Section 7 challenges provide a promising avenue for employees or labor organizers seeking to challenge English-only policies.
March 30, 2012
Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill
The Western District of Wisconsin issued its much anticipated opinion in WEAC v. Walker today on the constitutionality of Wisconsin Act 10, the public-sector anti-collective bargaining bill that was enacted into law last June after a monumental political fight. Of course, Act 10's passage continues to have ramifications as Governor Walker was officially subjected to a recall election today (after some 900,000 Wisconsites signed petitions to recall him), with an additional four Republican state senators and the lieutenant Governor also being subject to recall.
I just read this Act 10 decision and my conclusion is: good, but not great. Most of Act 10 survives on equal protection grounds, the court buying the Walker Administration's hard-to-believe argument that it only applies to non-public safety employees, and not public safety officials, because of concerns that public safety employees would be needed if the other public employees went out on strike (even though such strikes would be illegal under Wisconsin law).
Nevertheless, in a clear victory for the public-sector unions in Wisconsin, the onerous recertification and anti-dues check off provisions, that again only applied to non-public safety employees, were enjoined on both equal protection and First Amendment grounds. The cout found asolutely no connected between the Walker administration's purported justifications for treating these two groups of public employees differently and the need for these two punitive provisions. Indeed, the court goes out of its way to all but say that the Walker administration passed these provisions as political payback for those public safety unions that supported Walker in the 2010 election.
Special kudos to friend of the blog, Joe Slater (Toledo), who was cited twice by the court. Once for his contribution to the Marquette Law Review Symposium in 2010: Joseph E. Slater, Lessons from the Public Sector: Suggestions and a Caution, 94 MARQ. L. REV. 917, 927 n.65 (2011), and once for the affidavit he submitted on behalf of plaintiff unions, stating that not a single other state in the union had such an onerous recertification provision.
March 29, 2012
Brown on East Asian LEL
Congratulations to Ron Brown (Hawai'i) on the publication of his book East Asian Labor and Employment Law: International and Comparative Context (Cambridge 2012). I've ordered my copy and am looking forward to reading it. Here's the publisher's description:
This book deals with international labor and employment law in the East Asia Region (EA), particularly dealing with China, South Korea, and Japan. It explores and explains the effects of globalization and discusses the role of international lawyers, business personnel, and human resource directors who are knowledgeable, culturally sensitive, and understand the issues that can arise when dealing in EA trade and investment. The text and readings (from area experts) are organized and written to provide the reader with, first, a broad understanding and insight into the global dimensions of the fast-emerging area of labor and employment issues (e.g., global legal standards and their interplay with domestic and foreign laws); and second, to show how these laws and approaches play out in specific EA countries (comparing global approaches with the specific laws of each country on four common agenda items: regulatory administration, workers' rights, trade unions, and dispute resolution). The book should be of interest not only to lawyers, students, human resource personnel, and government officials, but also to business investors, managers, and members of the public interested in the growing phenomenon of changing labor laws and societies in China, South Korea, and Japan.
Howe on Government as Role Model in Union Relations
John Howe (Melbourne) has just posted on SSRN his chapter, from Rediscovering Collective Bargaining: Australia's Fair Work Act in International Perspective (W.B. Creighton & A. Forsyth, eds., forthcoming 2012), Government as Industrial Relations Role Model: The Promotion of Collective Bargaining and Workplace Cooperation by Non-Legislative Mechanisms. Here's the abstract and an excerpt from the Introduction. Governors in Wisconsin and Ohio might want to take notes.
Most collective bargaining regimes operate by establishing a right to bargain collectively at enterprise or industry level. In theory, the law operates to facilitate collective bargaining by providing that employers must not refuse to bargain collectively with employee representatives where a sufficient number of employees wish that to happen, even where individual employees are in a weak bargaining position relative to their employers.
In systems where the state wishes to encourage collective bargaining, non-legislative means can be employed to promote or encourage collective bargaining as a supplement to the procedural right to bargain. Sometimes this is through the state operating as a ‘model employer’ or role model, thereby demonstrating its commitment to collective employment practices. Beyond this, government may make adoption or consideration of collective practices a condition of the receipt of public finance under government procurement programs, grants and subsidies and so on. It might also seek to encourage the take up of the desired practices through education and information programs. Failure to consider these non-legislative mechanisms leaves an incomplete picture of the role of the state in regulating work.
March 28, 2012
Thoughts on the Flynn Report
In light of Terrence Flynn’s response to allegations of ethical breaches, I wanted to give some additional thoughts. Flynn's attorney sent this response to the IG; you can compare it to the IG report and see what you think. The letter notes that there wasn't much time to prepare a response, so I'm not going to analyze it as the final word, but it doesn't leave me convinced that everything was innocuous or inadvertent. In addition, Flynn responded to the media, saying among other things, that "I am troubled by the politicization of this internal matter, in which I have committed no wrongdoing, and feel that this manufactured controversy is emblematic of the mean-spirited political theatrics that currently paralyze Washington and deter individuals from public service.”
First, Flynn’s argument that he did nothing wrong is unconvincing. I don’t know enough about the relevant criminal statutes at play (comments to my original post listed a couple) to make a conclusion regarding criminal liability, or security law violations if anyone traded on some of his information, but I feel confident in saying that providing assistance and, especially, confidential information to parties involved in litigation against the NLRB is something that Board members shouldn't do. Indeed, I can’t believe that Flynn, or any other Board member, would say “no problem” to an employee who was giving similar information to former NLRB Member Craig Becker to assist him with a challenge that the SEIU was bringing against a Board decision or rule (that's a made-up hypo; I'm not even sure what Becker's doing now). More significantly, by saying that this isn’t a problem, he’s in effect announcing that he may continue to pass along this type of information. Given that, how can the NLRB function properly with him working there in any capacity? How are other Board members supposed to deliberate knowing that their discussions lack confidentiality? I really can’t see any way for the Board to get back to normal without Flynn resigning or being removed.
Second, Flynn’s attempt to blame his troubles on politics doesn’t pass the laugh test. Indeed, I’ve been shocked at how muted unions and the Democrats have been on this, with the AFL-CIO’s call for his resignation being the most high-profile. I actually like allowing the investigation to continue without the histrionics, which is an incredible contrast to what NLRB opponents have done. One needs only to think about the Boeing case—which ironically was one of the subjects of Flynn’s e-mails—as a contrast to what’s going on now. Moreover, I don’t know how the investigation started, but even if a political motive existed, the IG’s report stands on its own. Maybe politics played a role in bringing it to light, but I don’t see a case of some innocent government official being unfairly impugned for political gain (again, see Boeing). Finally, ask yourself what would be happening now if a current Democratic NLRB Member was the subject of this IG report and had passed information to, hypothetically, Craig Becker or Wilma Liebman.
Stay tuned, as there's obviously plenty more to come on this one.
Recently Published Scholarship
- Jill D. Weinberg & Laura Beth Nielsen, Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking [though you can't tell from the title, the article article uses civil rights employment cases as its dataset], 85 S. Cal. L. Rev. 313 (2012).
- Charles C. Mathes, The Department of Labor's Changing Policies Toward the H-2B Temporary Worker Program: Primarily for the Benefit of Nobody, 80 Fordham L. Rev. 1801 (2012).
Yuracko on the Unfulfilled Promise of the Prohibition Against Sex Stereotyping
Kim Yuracko (Northwestern) has just posted on SSRN her article (forthcoming, 2012 U. Pa. L. Rev.) Soul of a Woman: The Sex Stereotyping Prohibition at Work. Here's the abstract:
In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act’s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually does mean in courts’ current sex discrimination jurisprudence. I reject the interpretations most often offered by scholars — namely that the prohibition requires either freedom of gender expression or sex-blind neutrality. I argue that the prohibition reflects not a coherent antidiscrimination principle but a pragmatic balancing test. I conclude by arguing that the prohibition has not lived up to its rhetorical promise. Indeed, the implications of the prohibition are both dangerous and ironic in ways not previously recognized. While the prohibition has extended Title VII’s protection to workers who had previously been excluded, it does so by relying on and reinforcing traditional gender categories. Moreover, by doing so the prohibition actually protects some individuals at the expense of the class whose subordination stemming from socially salient gender norms remains intact.
March 27, 2012
Secunda on the Comparative Lack of Privatization in American Social Insurance Programs
Paul Secunda (Marquette) has just posted on SSRN his timely article Explaining the Lack of Non-Public Actors in the U.S. Public Social Insurance System. Here's the abstract:
There are currently very few non-public actors playing a role in the federal and state social insurance programs in the United States. Yet, “projected long-run program costs for both Medicare and Social Security are not sustainable under currently scheduled financing, and will require legislative corrections if disruptive consequences for beneficiaries and taxpayers are to be avoided.” As financial pressure increases on these programs, as it surely will, Americans may become more willing to go the privatization route and engage more non-public actors in the provision of social insurance.
In the meantime, the paradox of the American social insurance system is that while disclaiming any desire for socialist-type programs, most Americans today believe that only the government should be responsible for providing the social insurance safety net. On the one hand, this could be because U.S. citizens are seeking to hold on to what meager social safety net they have left. On the other hand, scarred from the recent global recession and underhanded actions by many private investment firms and banks, most Americans are not yet ready to place their faith in these private actors, even if more efficiency, cost-savings, and activation could be achieved by doing so.
What this all means is that unlike its counterparts in Europe, the United States social insurance system does not appear to have an incipient movement in which non-public actors will start to play a larger role in any American social insurance program in the near future. At the same time, the stability of the current system means there is unlikely to be the same diminishment in solidarity that is sometimes seen with the introduction of non-public actors into these programs in other countries.
March 26, 2012
Recently Published Scholarship: Hofstra LELJ
- Kenneth Casebeer, O My Sons and Daughters, How Do I Immiserate Thee: Let Me Count the Ways, pg. 1.
- Harry G. Hutchison, Waging War on "Unemployables"? Race, Low-Wage Work, and Minimum Wages: The New Evidence, pg. 25.
- Emily S. Miller, The Strongest Defense You've Never Heard Of: The Constitution's Federal Enclave Doctrine and its Effect on Litigants, States, and Congress, pg. 73.
- Marisa Warren and Arnie Pedowitz, Social Media, Trade Secrets, Duties of Loyalty, Restrictive Covenants and Yes, the Sky is Falling, pg. 99.
- Jay Youngdahl, The Time Has Come for a Sustainable Theory of Fiduciary Duty in Investment, pg. 115.
- David Barnhorn and Joey E. Pegram, Speak the Truth and Tell No Lies: An Update for the Employee Polygraph Protection Act, pg. 141.
- Ashley L. Behre, Coming Out to Fight for Our Country: Achieving Equality for Gay Service Members in Post-"Don't Ask, Don't Tell" Military, pg. 189.
- Phillip K. Vacchio and Joshua L. Wolinsky, Genetic Information Nondiscrimination Act of 2008: It's in Title VII's Genes, pg. 229.
Call for Proposals for the Seventh Annual Seton Hall Employment & Labor Law Scholars' Forum
Thanks to Tim Glynn (Seton Hall) for giving us the heads up on this Call for Proposals for the Seventh Annual Seton Hall Employment & Labor Law Scholars' Forum which will be held at the Seton Hall Law School, October 5-6, 2012. From the press release:
Building on the successes of the last six years, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents.
For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.
The event will be held at Seton Hall Law School, October 5-6, 2012. As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere. Seton Hall will pay all transportation and accommodation expenses, and will host a dinner on Friday evening.
Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Friday, June 1, 2012.
Proposals should be submitted to:
Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or firstname.lastname@example.org.
Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by September 10, 2012.
For further information, including past participants, visit our Forum website: http://law.shu.edu/youngscholars.