April 27, 2012
Recently Published Scholarship
- Michael Waterstone, Michael Ashley Stein, & David B. Wilkins, Disability Cause Lawyers, 53 Wm. & Mary L. Rev. 1287 (2012).
- Katherine A. Peebles, Negligent Hiring and the Information Age: How State Legislatures Can Save Employers from Inevitable Liability, 53 Wm. & Mary L. Rev. 1397 (2012).
- Elizabeth A. Leyla, The War(riors) at Home: Examining USERRA's Veterans' Reemployment Protections When Hostility Follows Soldiers to the Workplace, 28 Georgia St. U. L. Rev. 851 (2012).
New Book on Canadian Constitutional Labor Law
Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case, edited by Fay Faraday, Judy Fudge and Eric Tucker (Irwin Law 2012). Here's a description:
On 29 April 2011, the Supreme Court of Canada released its much-anticipated decision in Attorney General of Ontario v Fraser, which dealt with the scope of constitutional protection of collective bargaining. This collection of original essays untangles the two stories that are intertwined in the Fraserdecision—the story of the farm workers and their union’s attempt to obtain rights at work available to other working people in Ontario, and the tale of judicial discord over the meaning of freedom of association in the context of work. The contributors include trade unionists, lawyers, and academics (several of whom were involved in Fraser as witnesses, parties, lawyers, and interveners). The collection provides the social context out of which the decision emerged, including a photo essay on migrant workers, while at the same time illuminating Fraser’s broader jurisprudential and institutional implications.
Areheart on GINA
This Essay briefly considers both the current and optimal role of privacy in employment discrimination jurisprudence. The recently passed Genetic Information Nondiscrimination Act (GINA) is illustrative of one way to value privacy through employment discrimination mandates. In particular, GINA includes a prohibition on the use of genetic information in all employment decisions, affording a measure of genetic privacy to potential and current employees.
GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact doctrine. There is thus a tension between privacy and effectuating certain employment discrimination policies that are directed toward antisubordination ends. After exploring the tension that sometimes exists between privacy and antisubordination, this Essay argues that, in the statutory areas of the Americans with Disabilities Act and GINA, foregoing privacy is often desirable in order to fight subordination by employees revealing, and employers considering, particular health traits and information.
April 26, 2012
EEOC Issues Enforcement Guidance on Using Arrest/Conviction Records
The EEOC yesterday issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII. The Commission voted 4-1 to approve the guidance document. The Commission also issued a Question-and-Answer (Q&A) document about the guidance. Here's a description from the EEOC's press release:
While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. The guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago. The Commission originally issued three separate policy documents in February and July 1987 under Chair Clarence Thomas and in September 1990 under Chair Evan Kemp explaining when the use of arrest and conviction records in employment decisions may violate Title VII. The Commission also held public meetings on the subject in 2008 and 2011. The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991. The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.
Hat tip: Carol Furnish.
Bring Your Guns to Campus
In Kentucky, it violates public policy for a university to fire an employee for driving onto campus with a gun in the glove compartment of his car. See Mitchell v. University of Kentucky. Hat tip: Bryce Rhoades.
More Flynn Misconduct?
[UPDATE: The Romney campaign has apparently said that Schaumber is no longer an advisor. That's no surprise. What is a surprise is that the campaign claims that Schaumber stepped down in December 2011. Obviously, I can't say for sure whther that's true, but it's really hard to believe that the campaign let report after report on this scandal come out for weeks without correcting statements that Schaumber was an advisor. Someone on the campaign, if the report is accurate, is either incompetent or lying.]
Rep. Cummings has just stated that more allegations involving NLRB Member Flynn are on their way. According to Cummings, the NLRB's IG has discovered "additional and more serious improper disclosures" from Flynn to former member Schaumber and that the IG referred the matter to the Office of Special Counsel for possible violations of the Hatch Act (prohibiting certain partisan political activity).
I won't hazard a guess at what these allegations involved, but stay tuned. I assume this means that Rep. Issa will finally hold a hearing on the matter. Right?
Hat Tip: Patrick Kavanagh
Corbin on Faith-Based Discrimination
Caroline Mala Corbin (Miami) has just posted on SSRN her essay Expanding the Bob Jones Compromise. The essay will appear in Austin Sarat, ed., Matters of Faith: Religoius Experiences and Legal Responses in the United States (forthcoming Cambridge U. Press). Here's the abstract:
Sometimes the right to liberty and the right to equality point in the same direction. Sometimes the two rights conflict. Which constitutional value should prevail when the right to religious liberty clashes with the right to be free from discrimination on the basis of race and sex? More particularly, should faith-based organizations, in the name of religious liberty, be immune from anti-discrimination law?
Bob Jones University v. United States suggests a compromise: permit faith-based organizations to discriminate on the basis of race or sex if that discrimination is religiously required, but at the same time refuse to condone or support that discrimination by denying those religious organizations any financial aid. In fact, it is already federal policy to withhold government subsidies from religious organizations that discriminate on the basis of race, and the Bob Jones Court rejected a free exercise challenge to that policy. The same policy should apply with regard to discrimination on the basis of sex. Allowing religious groups to discriminate on the basis of sex but declining to provide grants, vouchers, or tax exempt status to those that do discriminate honors both our commitment to religious liberty and our commitment to equality.
April 24, 2012
Senate Fails To Block NLRB Election Rules
The Senate yesterday voted 54-45 to reject a bill that would have blocked the NLRB's new elections rules. This is obviously just one of many labor-related skirmishes that we've already seen and will see plenty more of as the election cycle heats up. The NLRB will certainly be at the center of some, but with the Wisconsin Gov. Walker recall election coming up, state public labor relations may be making an encore soon.
In the meantime, the election rules will go into effect on April 30, so look out for the first elections under the new system.
Hat Tip: Patrick Kavanagh & Mike Lightner
April 23, 2012
Public-Sector Dues Checkoffs and Agency Shops
Public Sector Inc. is holding an online debate on "Are Dues Check-Off and Agency Shop in the Public Interest?," between Joe Slater (Toledo) and Daniel DiSalvo (Manhattan Institute, City College of NY Political Science Department). The opening statement are up and the back-and-forth will continue for three more days, so check it out. Comments are also accepted.
A couple of updates on the NLRB's recent attempts to issue rules requiring notices and to change some of its election procedures. The New York TImes today has an editorial supporting the Board's notice posting rule, which states in part:
At its core this isn’t just about the legality of having to hang a poster in the coffee room. It’s about industry’s attempt to delay rules whenever it cannot derail them outright. It is about preventing workers from gaining knowledge and support to help them press their concerns.
The courts will now have their say. The White House and Democratic lawmakers should weigh in with friend-of-the-court briefs supporting the N.L.R.B. — and employees’ right to know their rights.
Also, there is a vote scheduled this week in the Senate for a bill that would block the Board's elections rules. There's obviously no chance that this will pass now, but just another attempt to go after the NLRB. And, remember, those new rules go into effect on April 30.
These two rules, and the reactions to them, have been fascinating. This is especially true given the number of times that people have pushed the NLRB to implement more rules (including myself, to a limited extent, and the NAM, which is fighting the notice rule). Once I get done with my current deadlines (hi Paul & Sam), I'm thinking of writing something along the lines of "Beware of What You Ask For," which is not to say that these attempts have been failures. At least not yet.
Hat Tip: Patrick Kavanagh & Dennis Walsh
Recently Published Scholarship
- Lauren M. Weinstein, The Role of Labor Law in Challenging English-Only Policies, 47 Harv. C.R.-C.L. L. Rev. 219 (2012).
- Katie Lynn Patrick, Airline Employees Are Not Reporting Violations Because They Lack Adequate Whistleblower Protection: Are You Ready for Takeoff?, 46 Valparaiso U. L. Rev. 211 (2011).