April 13, 2012
A Split on the NLRB's Notice Rule
On the heels of the recent D.C. District Court decision that mostly upheld the NLRB's new notice posting rule, a district court judge has fully rejected the rule [ Download SC Notice Decision ]. In this most recent case, the judge held that the rule exceeded the NLRB's authority to enact rules "necessary to carry out" the provisions of the NLRA. The judge also emphasized, among other things, that the NLRB only reacts to cases brought to it, which the rule contradicts.
I tend to agree with the earlier decision, which viewed the "necessary" language as giving the NLRB broader authority; it seems to me that most agencies are give wide leeway with similar language. Moreover, the stress on the NLRB's reactive role seems overemphasized. That said, the lack of statutory authority for a notice, in contrast to a lot of other statutes, isn't helpful to the NLRB. I don't think that's fatal, but the judge in the recent decision disagrees.
Here's a pie in the sky solution: what if Congress passed a law requiring the posting of an NLRA notice that emphasized employees' right to unionize, not unionize (including decertify), and to act collectively in the absence of a union. In other words, full disclosure. If we're serious about informing employees of their rights--and others and I have written many times about the importance of doing so--then a more complete notice should be a good thing. I know, a snowball's chance of passing. But I'd love to at least see the bill proposed given all I've heard over the years about the need for employees to learn about their right not to be represented.
Given that we won't be seeing legislation anytime soon, we'll just have to follow these cases as they go up on appeal. I won't actually predict this, but it wouldn't surprise me to see this in the Supreme Court eventually. Stay tuned.
Hat Tip: James Young
Franklin on Sex Discrimination
Cary Franklin (Texas) has just posted on SSRN her article (Harvard L. Rev.) Inventing the 'Traditional Concept' of Sex Discrimination. Thanks to Jon Harkavy for calling our attention to it and singing its praises. Here's the abstract:
It is a commonplace in employment discrimination law that Title VII’s prohibition of sex discrimination has no legislative history. Courts have therefore argued that this prohibition must be restricted to the “traditional concept” of sex discrimination. Traditionally, courts suggest, discrimination “because of sex” referred only to practices that divided men and women into two perfectly sex-differentiated groups. Although Title VII doctrine has evolved over time, this “traditional concept” of sex discrimination continues to exert a powerful regulative influence over the law. It excludes certain claims — such as those by sexual minorities — from coverage and elevates the evidentiary burdens plaintiffs must satisfy in order to prove discrimination “because of sex.”
This article argues that the “traditional concept” of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. Recovering the largely forgotten legislative history of Title VII’s sex provision, this article shows that there was little consensus and much debate in the 1960s about what qualified as sex discrimination. Employers advanced the argument that Title VII applied only to practices that sorted men and women into two perfectly sex-differentiated groups in order to preserve the traditional gendered organization of the workplace and insulate particular employment practices from scrutiny. In the 1970s, courts adopted this interpretation but no longer cited the need to preserve conventional sex and family roles as a justification; instead, courts cited deference to the legislature and fidelity to tradition as justifications for interpreting the law narrowly. This article shows that history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it. This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate “because of sex.” The parameters of Title VII’s prohibition of sex discrimination have always been determined by normative judgments about how forcefully the law should intervene in practices that reflect and reinforce conventional understandings of sex and family roles.
DOL Extends Comment Period on FMLA
Kenneth Shiotani (National Disability Rights Network) just informed us that the Department of Labor Wage & Hour Division has extended the deadline for submitting comments to FMLA proposed regulations. The new deadline is April 30.
Seiner on Plausibility and Disparate Impact
Joe Seiner has posted on SSRN the final chapter in his series on the intersection between employment discrimination and Iqbal. This one explores the implications of the plausibility standard for disparate impact cases: Plausibility & Disparate Impact, 64 Hastings L.J. ___ (forthcoming 2013). From the abstract:
In Twombly v. Bell Atlantic Corp., 550 U.S. 644 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both the courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination.
There are two types of employment discrimination claims – intentional (or disparate treatment) and unintentional (or disparate impact) discrimination. The academic scholarship is replete with discussions of the problems that the plausibility standard has created for victims alleging disparate treatment claims. Discriminatory intent is difficult to establish, and this is particularly true where a plaintiff has not had access to discovery.
One area that has remained unexplored in the academic literature, however, is the effect of Twombly and Iqbal on disparate impact cases. This Article seeks to fill that void in the scholarship. This paper closely examines the two most likely approaches for applying the plausibility standard to unintentional discrimination claims. This paper offers an analytical framework for considering these claims under either standard, and explains why a more streamlined approach to the Supreme Court’s recent decisions is preferable.
Navigating Twombly, Iqbal and other Supreme Court decisions, this paper explains how the plausibility standard should be applied to unintentional discrimination cases. This Article provides a blueprint for the courts and litigants to follow when considering a disparate impact claim, and addresses the implications of adopting the proposed approach. Twombly and Iqbal represent a sea change for workplace plaintiffs, and this Article attempts – for the first time – to make sense of these decisions in one of the most complex areas of employment discrimination law.
April 12, 2012
Hirsch on the Flynn Scandal
It’s been almost three weeks since the release of a National Labor Relations Board Inspector General report finding that Republican NLRB member Terence Flynn violated ethics rules. Since then, members of Congress from both parties have said the Justice Department should review the allegations. Flynn has bulked up his defense team with a former inspector general of his own — Glenn Fine, who investigated the Bush DOJ. But there’s been no comment on the scandal from the White House, which promoted Flynn, or from the Romney campaign, whose advisor Peter Schaumber allegedly received secret info from him.
“This is the cronyism and bias that you absolutely don’t want in a government agency,” says Jeffrey Hirsch, a former NLRB attorney who now teaches law at the University of North Carolina. “If [Flynn] found out one of his board staff was giving info to, say, a Democratic former board member,” says Hirsch, “I can’t imagine he wouldn’t fire the person on the spot.” (Spokespersons for the White House and NLRB Chairman Mark Pearce both declined Salon’s request for comment. The Romney campaign did not respond to multiple requests.)
[T]he Labor page on Romney’s website still prominently features an essay by Schaumber, bashing “misguided administrative actions by partisans at the NLRB” and promising that Romney will appoint NLRB members who pursue “flexibility” and “cooperative” labor relations. Hirsch says that as former NLRB members, Schaumber and Kirsanow “knew they shouldn’t have taken that stuff, and they clearly kept accepting it.” The situation is “incredibly ironic,” says Hirsch, “given all the criticism that the board has taken by Republicans” for supposed bias. “There’s no question that this was inappropriate. And so the silence is deafening.”
Horton Hatches an Egg?
I've been noodling lately with Tim Glynn (and bothering the likes of Rebecca White, Mike Zimmer, and Steve Willborn) about the significance of DH Horton for mandatory arbitration. I've been around long enough to see a number of efforts fail to knock the Federal Arbitration Act off the top of the hill -- including the '91 Civil Rights Act, OWBPA, and, most recently, state unconscionability law. So it's not like I'm very optimistic about yet another effort.
Still, I'm pretty intrigued by Horton's conclusion that an employment agreement barring "joint, class, or collective claims . . . in any forum, arbitral or judicial" is a violation of the NLRA for workers covered by the statute. And, whether or not, the Board is "right" on the law, the Supreme Court's deference doctrine should, at least in theory, require the Fifth Circuit to uphold its construction of the NLRA. However, the courts have not been as deferential to the Board as maybe Chevron would require, and there's a joker in the deck anyway -- a court could defer to the Board on its interpretation of the NLRA but still find no deference due as to the FAA and the intersection of the two statutes.
So I'm far from predicting that this egg will actually hatch at the Fifth Circuit. (For those who are wondering about the picture on the right, that's Horton the Elephant, star of Horton Hatches the Egg and the better known Horton Hears a Who.)
On the other hand, I've been wondering why the Fifth Circuit decision matters all that much. Of course, it will matter a lot to the parties because it will determine whether the employer was guilty of an unfair labor practice in the case before the Board.
But my point is that, if the Board is correct, that would mean that any contract which barred concerted activity in pursuit of legal rights was contrary to a federal statute and should not be enforced. Presumably, then, any court asked to stay a suit pending arbitration would have to decide whether the arbitration clause was valid to the extent it barred bringing claims collectively, and, in the process, should afford the Board whatever deference was appropriate.
Or is that right? Does the party seeking release from such an agreement have to resort to the Board? This raises a question of primary jurisdiction. Or does it? After all, the Board has spoken on the principle, if not the application of the principle to the agreement before the court. And if there is a resort requirement, when does any unfair labor practice occur -- when the agreement is signed or when it's invoked to try to torpedo a class suit?
So far, the district courts have not been very receptive to such arguments, and even accepting them would raise a host of second order questions. But the reality remains that, regardless of the result in the Horton case itself, the challenge it poses may well arise in a number of other cases and may turn out to be the Court's next big arbitration issue in the employment context.
Tim and I are probably going to tackle this shortly, and any thoughts would be appreciated.
April 10, 2012
Workplace Prof Moves for 2012-2013
I know everyone has been waiting with bated breath to see workplace prof faculty moves for the coming academic year, so without further ado, here is the annual report of workplace law professors comings, goings, etc. (as always, if you have additional information, please provide in the comments). This post will be updated as additional information comes in.
Entry Level Hires
- Anastasia Boles (Law Research Fellow at Thomas Jefferson) to Arkansas-Little Rock
- Bradley Areheart (VAP at Stetson) to Tennessee
- Stacy Hawkins (VAP at Rutgers-Camden) to Rutgers-Camden
- Katie Eyer (Penn Research Scholar) to Rutgers-Camden
- Christopher Griffin (VAP at Duke) to William & Mary
- Naomi Schoenbaum (Bigelow Fellow, Chicago) to George Washington
Promotions and Tenures
- Wendy Greene (Cumberland/Sanford) has been awarded tenure
- Amy Monahan (Minnesota) has been promoted to full professor
- Richard Moberly (Nebraska) has been promoted to full professor
- Wendy Hensel (Georgia State) has been promoted to full professor
- Michael Duff (Wyoming) has been awarded tenure and promoted to full professor
- Jeannette Cox (Dayton) has been awarded tenure and promoted to full professor
- Alex Long (Tennessee) has been promoted to full professor
- Jeff Jones (Lewis & Clark) has been granted tenure
- Nancy Modesitt (Baltimore) has been granted tenure and promoted to associate professor
Administrative Appointments and Honors
- Cesar Rosado (Chicago-Kent) to Research Fellow at NYU Center for Labor and Employment Law
- Orly Lobel (San Diego) named University Professor for 2012-2013
- Wendy Hensel (Georgia State) appointed Associate Dean for Research and Faculty Development
- Jarod Gonzalez (Texas Tech) named Associate Dean for Academic Affairs
- Matt Bodie (St. Louis) appointed to American Law Institute (ALI)
- Ken Dau-Schmidt (Indiana-Bloomington) appointed to American Law Institute (ALI)
- Orly Lobel (San Diego) appointed to American Law Institute (ALI)
- Lawrence Rosenthal (N. Kentucky) appointed to American Law Institute (ALI)
- Aditi Bagchi (Penn) to Fordham
- Courtney Cahill (Roger Williams) to Florida State
- Carrie Basas (Case Western Visitor) to Akron
- Nicole Porter (Toledo) to Denver (2012-2013)
- Michael Duff (Wyoming) to Denver (Spring 2013)
- Wilma Liebman (former NLRB Chair) to Illinois (2012-2013)
- Cesar Rosado (Chicago-Kent) to Stockholm University Law School (Summer and Fall 2012)
- Michael Green (Texas Wesleyan) to Georgia (Spring 2013)
- Matt Bodie (St. Louis) to Notre Dame (Fall 2012)
- Juliet Stumpf (Lewis & Clark) to University of Leiden (part of Spring 2013)
- Michael Hayes (Baltimore) to Thomas Jefferson (Spring 2013)
- Bob Belton (Vanderbilt)
Recently Published Scholarship: BJELL
Berkeley Journal of Employment and Labor Law
Vol. 32 #2 (2011)
- Catherine L. Fisk, The Role of Private Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild of America, 1938-2000, p. 215.
- Timothy P. Glynn, Taking Self-Regulation Seriously: High-Ranking Officer Sanctions for Work-Law Violations, p. 279.
- Herman N. (Rusty) Johnson, Jr., The Evolving Strong-Basis-In-Evidence Standard, p. 347.
Working Group on the Future of Systemic Disparate Treatment Law
- Noah D. Zatz, Introduction: Working Group on the Future of Systemic Disparate Treatment Law, p. 387.
- Tristin K. Green, The Future of Systemic Disparate Treatment Law, p. 395.
- Melissa Hart, Civil Rights and Systemic Wrongs, p. 455.
- Michael Selmi, Theorizing Systemic Disparate Treatment Law: After Wal-Mart v Dukes, p. 477.
- Richard Thompson Ford, Beyond Good and Evil in Civil Rights Law: The Case of Wal-Mart v. Dukes, p. 513.
David E. Feller Annual Memorial Labor Law Lecture
- Eliseo Medina, The Collective Rights of Immigrant Workers: Organizing in Difficult Times, p. 531.
The New York University Journal of Legislation and Public Policy is seeking articles for Issue 16.2, to be published spring of 2013. The issue will be devoted to labor law reform in the wake of the failure of the Employee Free Choice Act.
Submissions are sought on a wide-range of labor law topics on both the state and federal level. A first draft of any proposed article accepted for publication would need to be prepared by early August.
The Journal is also seeking short essays offering reform proposals. Preferred submissions will be 8-10 pages in length, and will be primarily devoted to proposing novel law and policy changes to state or federal labor law with minimal background information beyond that necessary to identify the problem addressed.
Please direct inquiries, proposals, and submissions to email@example.com. Submissions should include a resume, cover letter, and abstract or article draft.
Paul Brachman – Editor-in-Chief
Phillip Harmonick – Senior Articles Editor
April 9, 2012
More on Flynn Scandal
-I've continued to be surprised at the relative silence on the recent Flynn scandal. As I said in one of my earlier posts, can you imagine the what would be happening if this involved Democrats? Nevertheless, there has been some increase in pressure. Among the recent events:
Senator Harkin has asked for more information from Flynn, specifically records of correspondence with Schaumber.
-Rep. Cummings has requested that the House Oversight and Government Reform Committee interview and collect records from Kirsanow and Schaumber.
-Al Kamen wonders if the president now has buyer's remorse.
-Flynn hired Glenn Fine, the former Dept. of Justice IG, to represent him. Fine is a heavy-hitter, so this matter may go on for a while.
Hat Tip: Patrick Kavanagh
Labor & Employment Roundup
-March unemployment data. The unemployment rate is down to 8.2%, but the number of new jobs was disappointing. Something else to blame on global warming?
-Reason #343 why I don't work at Godfather's Pizza and a further reminder of why we should be thankful for Herman Cain's infidelity.
-The NLRB is making more efforts to inform nonunion employees about their NLRA rights. It's about time and, I hope, only the start.
-A Michigan judge overturns--albeit probably temporarily--a new law stripping public grad students' right to organize.
-The OPM Director says that the federal government needs to have "zero tolerance" for USERRA violations.
Hat Tips: Patrick Kavanagh, Joseph Slater, and Jason Walta
ALJ Rules Board has Jurisdiction Over Tribal Casino
The case is Soaring Eagle Casino & Resort and UAW. The complaint alleged that the Tribe violated Section 8(a)(1) of the NLRA by maintaining an unlawful no-solicitation policy in its handbook and prohibiting employees from talking about the Union in the employee hallway, and (2) Section 8(a)(3) and (1) of the Act by suspending and then discharging an employee for engaging in union solicitation and distribution activities in the employee hallway and public bathroom in the casino. The Tribe denied the allegations and argued that the NLRA does not apply to a tribal Government’s exercise of sovereign authority absent express congressional authorization. The ALJ disagreed and ordered compliance.
Recently Published Scholarship
- Lawrence D. Rosenthal, Title VII's Unintended Beneficiaries: How Some White Supremacist Groups Will Be Able to Use Title VII to Gain Protection from Discrimination in the Workplace, 84 Temple L. Rev. 443 (2012).
- Joseph Seiner, Punitive Damages, Due Process, and Employment Discrimination, 97 Iowa L. Rev. 473 (2012).
- Joseph Seiner, Plausibility Beyond the Complaint, 53 Wm. & Mary L. Rev. 987 (2012).
- Dodson D. Strawbridge, Thy Fiance Doth Protest Too Much: Third-Party Retaliation under Title VII after Thompson v. North American Stainless, LP, 63 Mercer L. Rev. 767 (2012).
- Frederick J. Melkey, Creating New Law or Restoring the Old? -- Retroactivity and the Americans with Disabilities Amendments Act of 2008: A Comment on EEOC v. Autozone, 34 N.C. Central L. Rev. 1 (2011).
- Jeremy Gelms, High-Tech Harassment: Employer Liability under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).
Willborn on Enforcing LEL Rights
Steve Willborn (Nebraska) has just posted on SSRN his chapter (book title TBD; eds. John Howe & Colin Fenwick; publisher ILO) Labor Enforcement Theory: The Case of Public vs. Private Enforcement. Here's the abstract:
Labor laws are enforced in many different ways. Sometimes public agencies enforce the laws and sometimes workers are authorized to do so. Sometimes employer/violators pay for litigation costs and sometimes not. Sometimes the sanctions for violations are set by the harm caused (such as loss of backpay) and sometimes the sanctions are fines and penalties. Sometimes agencies are the primary fora for hearing disputes and sometimes courts. The consequences of these types of differences in labor enforcement are under-studied empirically. Labor enforcement theory, if anything, is even less well-studied. This book chapter examines labor enforcement theory with a focus on the choice between public or private enforcement. The article begins by presenting a standard economic model of enforcement. The chapter then applies the model to private and public enforcement and argues, among other things, that private enforcement adjusts better than public enforcement to economic downturns, but is less effective at enforcing violations that affect current employees. The chapter concludes with a critique and call for re-evaluation of the standard economic model of enforcement.