Friday, January 13, 2012

Upcoming Disability Law Conferences


Thanks to Paul Harpur (T.C. Beirne in Brisbane) for sending word of two upcoming disability law conferences:


January 13, 2012 in Conferences & Colloquia, Disability | Permalink | Comments (0) | TrackBack (0)

What the Experts are saying …. Ken Dau-Schmidt


Today, begins the start of a series of workplace law professor essays on the Restatement of Employment Law. These essays stem from a meeting of law professors in Chicago in November to discuss the on-going Restatement project.  Each of these essays are from individuals who spoke at the conference. In addition, Chief Reporter Sam Estreicher and his Associate Reporters have been invited to submit their own expert essays and may do so in the future.


We begin today with Professor Ken Dau-Schmidt of the Indiana-Bloomington (Maurer) Law School:

On November 18-19, 2011, a group of labor law experts gathered to provide the second critique on the Restatement of Employment Law Project of the American Law Institute.

This conference taking place at the American Bar Foundation in Chicago, follows a previous conference held at Hasting Law School in February 2009.

When the first draft of the proposed restatement came out in 2006, the Labor Law Group sponsored a session on the ALI’s proposal at which both Mike Harper and Matt Finkin spoke.  After that session, there was sufficient concern among the experts in the field about the project that the Labor Law Group drafted a petition requesting reconsideration of the project and circulated it among members of the academy. The petition signed by sixty-two members of the legal academy was submitted to the ALI membership at their annual meeting.  The petition did not result in a major rethinking of the project; it did result in postponement of the approval of the initial draft by the ALI membership for one year. 

The Labor Law Group used that year to plan the Hastings conference and provide a more detailed critique of the ALI drafts up to that date. Working committees addressed the issues raised in Chapters 1, 2, and 4 of the proposed Restatement.  The resulting papers were published in 13 Employee Rts & Employment Policy J. (April 2009).  The ALI reporters and advisors were all invited to attend the Hastings conference and participate in the discussion.  Although none of the reporters attended the Hastings meeting, the meeting was attended by one member of the Council and a number of the projects’ advisers. Later, Timothy Glynn, Mike Zimmer, and Charlie Sullivan put together a panel at Seton Hall where the reporters heard some of the criticisms. 

These several critiques yielded criticisms of two general forms.

The first form of criticism was that the project was in some way fundamentally misguided.  For example, several commentators argued that the employment relation is evolving so quickly that it is too early to take a meaningful look backward in a Restatement.  These critics argued that a restatement at this time could not capture the dynamic changes in the law, or worse might serve to discourage further evolution of the law.  Others argued that the restatement project was fundamentally flawed because it had no unifying theme or theory to motivate a restatement of employment law that would be separate and complete.  The argument is that, in order to get a restatement of employment law that is internally consistent and consistent with the other related restatements of contract tort and agency, one would have to discuss why employment law is distinct from other areas of law and why a separate restatement would be needed by considering the underlying purpose of employment law.  Some went so far as to propose unifying principles around which employment law could be organized.  Alan Hyde said that the field could be unified around the idea of protecting employees’ rights.  Matt Finkin said that the field could be unified around the principle of protecting employees against exploitation because they typically have less power in the employment relationship.  The reporters and membership of the ALI have decided not to follow these advisory opinions and suggestions.  Thus there is currently no unifying theory among the various chapters that are proposed. 

The second form of criticism has been to consider the project on its own terms, in other words, to assess how well the reporters are doing in drafting a restatement of employment law that accomplishes what the ALI purports to do through restatements. 

I went back and looked at the ALI’s Reporters’ handbook which sets for the ALI’s objectives for reporters in drafting a restatement.  The general statement of these objectives is that in its restatements, the ALI seeks an authoritative consensus, among academics, practitioners and judges, on what the law is or on what it ought to be that is both internally consistent and consistent with other restatements.  In other words the ALI is seeking both a positive statement of what the law currently is, as well as a normative or aspirational statement about what the law should be.  Although the reporters should generally follow the doctrine in the majority of states, where it is necessary to make the restatement logical and consistent, both internally and with other restatements, the reporters can choose the “better rule” even where it is the minority rule, or does not yet exist in the common law. 

Trying to draft an appropriate positive restatement of the law among 50 odd jurisdictions is difficult enough, let alone figuring out what the law “ought” to be.  One narrow view of the normative objective would be to merely simplify or make consistent the common law.  In this case the approach would be to make small little changes “hammering out the dents” in the law in order to produce consistency.  However there is also a broader view of the normative role that the proposed Restatement can choose the minority rule if it proves to be logically better, and certainly if there is a trend in that direction.

            So far the critics have had more luck in critiquing the draft restatement on its own terms. The most visible success is in the area of the doctrine of the “inevitable disclosure” of trade secrets, which is now omitted from the restatement draft.  The reporters have also adopted a very limited form of the doctrine of self-publication of defamation in the employment context in response to criticisms that were made at the Seton Hall conference. Also at Seton Hall, a lot of criticisms were focused on privacy concerns and how to make a common law right to privacy real and meaningful when the employer can easily get consent from employees and because the employer can shape the employees’ expectations of privacy.  Matt Bodie has now added a section on employee to the privacy draft, so there has been some movement in response to this criticism.  Bodie’s draft on employee autonomy has little express basis in existing cases which poses an interesting question of the tension between the positive and the normative purposes of the ALI restatement.  Should the critics be happy that Bodie’s draft now makes more sense than the common law on the subject, or criticize it because it does not have adequate support in existing cases?


As Matt Finkin has said, a restatement of employment law will inevitably be a “dog’s lunch” of odds and ends which might not be that appealing, but as Charlie Sullivan has said the question is how to make that lunch as palatable as possible.

January 13, 2012 in Commentary, Employment Common Law | Permalink | Comments (0) | TrackBack (0)

DePaul Symposium: Class Action Rollback?


Next month, the DePaul Law Review will be hosting a symposium on class actions after the Supreme Court's Decision in Wal-Mart v. Dukes. The speakers and panelists look like a pretty interesting mix of folks, and I'm excited to be among them. I'm sure the day will give me lots to think about.

Here are the details:

Class Action Rollback? Wal-Mart v. Dukes and the Future of Class Action Litigation

 The 22nd Annual DePaul Law Review Symposium 
Friday, February 24, 2012, 9:00 am - 4:30 pm
DePaul Center 80051 E Jackson Blvd.Chicago, IL 60604

Registration and continental breakfast from 8:30 - 9:00 a.m. 

The morning session will begin at 9:00 am: Suja Thomas (Illinois) will deliver an opening presentation entitled Oddball Cases. Mark Perry (Gibson Dunn, Georgetown Adjunct), who represented Wal-Mart in the Dukes case, will next deliver a presentation entitled Defending Against Class Actions in the Post-Dukes Environment. Finally, Suzette Malveaux (Catholic) will deliver our Keynote presentation, The Power and Promise of Procedure: Examining the Class Action Landscape After Wal-Mart v. Dukes.

Our afternoon session will consist of three panel discussions on topics ranging from civil procedure to employment practices and practitioner strategies.

Confirmed Panelists: Marcia McCormick (St. Louis); William Hubbard (U. Chicago); Wendy Netter Epstein (Chicago Kent, Kirkland & Ellis); Lesley Wexler (Illinois); Steven Greenberger (DePaul); Tony Fata (Cafferty Faucher); Andrew Trask (McGuire Woods); Linda Friedman (Stonewell & Friedman); Naomi Schoenbaum (U. Chicago)

This event is approved for 5.5 hours of CLE credit.  A continental breakfast and lunch will be provided.
Please RSVP no later than February 17, 2012 to RSVP to Chris Burrichter at


January 13, 2012 in Conferences & Colloquia, Employment Discrimination, Faculty Presentations | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 11, 2012

New NLRB Officially Here

NLRBYesterday, the new NLRB member were sworn in.  The new members also announced their new chief counsels.  According to the announcement.

National Labor Relations Board Members Sharon Block, Terence F. Flynn and Richard F. Griffin were sworn in to office this week, bringing the Board to full five‑member strength for the first time since August 2010. They join Chairman Mark Gaston Pearce and Member Brian Hayes, who were Senate-confirmed to their positions in June, 2010. . . .

Ms. Block has named John Colwell as her Chief Counsel. Mr. Colwell served as Chief Counsel to former Chairman Wilma B. Liebman from January 2001 until the end of her final term in August 2011.  Before coming to the Board, he held positions in the immediate Office of the Solicitor in the U.S. Department of Labor, as well as having served as an advisor to the Assistant Secretary of Labor for Mine Safety and Health.  Mr. Colwell began his legal career with the Washington, D.C. labor-and-employment law firm of Yablonski, Both & Edelman.  Mr. Colwell received his B.A. from the University of Texas at Austin in 1981 and his J.D. from Yale Law School in 1985.  He is a graduate of Permian High School in Odessa, Texas.

Mr. Flynn has named Peter Carlton as his Chief Counsel. Mr. Carlton has been an attorney at the Board since 2001, most recently serving as Senior Counsel to Member Brian Hayes.  He has served as Chief Counsel to Member Peter Kirsanow, Assistant Chief Counsel to Chairman Wilma Liebman and Member Dennis Walsh, and Senior Counsel to  Members Peter Schaumber and William Cowen and Chairmen Peter Hurtgen and the late John Truesdale. A native of Dearborn, Michigan, Mr. Carlton graduated with high distinction from the University of Michigan in 1975 with a B.A. degree in English literature.  He earned a Ph.D. in English from the University of Virginia in 1986, and for several years was an assistant professor at St. John’s University in Minnesota.  Mr. Carlton received his J.D. from the University of Minnesota in 1996, and served as judicial clerk to the Hon. George G. Fagg of the United States Court of Appeals for the Eighth Circuit.  He came to the Board from the Washington, D.C., office of Jones Day.  

Mr. Griffin has named Peter D. Winkler as his Chief Counsel. Mr. Winkler has worked at the NLRB since 1977 and served as Chief Counsel to former Members Craig Becker, Dennis P. Walsh, Ronald Meisburg, and R. Alexander Acosta. He also was managing supervisor in the Appellate Court Branch, Division of Enforcement. Mr. Winkler received his B.A. from Amherst College in 1973, his M.A. from the University of Chicago, and his J.D. from the University of Michigan Law School. Mr. Winkler’s father was also a labor lawyer, and a Board attorney from 1938 through 1979.

It'll be interesting to see what cases the now full-Board starts tackling initially.  Also, we'll see whether the Board revisits some of the tables election rules or starts looking at other rulemaking opportunities.


January 11, 2012 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)

SCOTUS Upholds and Applies Ministerial Exception

SupctThe Supreme Court issued its opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, unanimously reversing the judgment of the Sixth Circuit that the plaintiff's suit for retaliation under the ADA was not barred by the ministerial exception to the anti-discrimination laws. The Court held both that there was a broad ministerial exception grounded in the First Amendment prohibiting civil authorities from deciding cases brought by ministers against their religious employers and that the individual plaintiff in this case was a minister.

You might remember from earlier posts that the case involved a teacher at a parochial school who took leave for a disability and who was not allowed to return to work, she alleged, because of her disability. When she threatened to take legal action for retaliation under the ADA (and later did take legal action), she was fired. The plaintiff was a "called" teacher, which meant that she had satisfied academic requirements that included certain theological study and an oral test by faculty members. Called teachers were given the title of "Minister of Religion, Commissioned." The school used called and lay teachers to perform the same functions, but only used lay teachers when called teachers were not available. The individual plaintiff started teaching as a lay teacher and later became a called teacher.

After a lengthy historical analysis of the First Amendment's Free Exercise and Establishment Clauses and the special solicitude the First Amendment has for religion as compared to other beliefs or associations, and after noting the uniformity of the Courts of Appeals on the existence of a ministerial exception, the Court held that there was one, reasoning:

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.  By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

Along the way, the Court rejected the notion that the issue was governed by Employment Division v. Smith, which had held that rules of general applicability could apply to bar or interfere with religious practices so long as those rules were rationally related to legitimate governmental interests. The religious practice at issue in that case, smoking peyote, was an "outward physical act," while choice of minister is "an internal church decision that affects the faith and mission of the church itself."

The Court then went on to hold that the individual plaintiff was a minister. The Court declined to adopt a test for when a person will be considered a minister, though. The Sixth Circuit had used a functional test, asking whether the plaintiff's duties were mostly secular or significantly religious. In rejecting that kind of purely functional test, the Court said:

We are reluctant . . . to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers [the plaintiff], given all the circumstances of her employment.

Here are the factors the Court considered, and I'm paraphrasing a bit: 1. The school held her out as a minister in a number of different ways including her title; 2. To receive the title, a teacher had to engage in specific religious training and 4. a formal process of commissioning; 5. The plaintiff held herself out to be a minister; and 6. Her job duties reflected a role in conveying the Church's message and carrying out its mission. So labels, the understanding of both employer and employee, training, a special ceremony or official acknowledgement of elevation to the position, and having some religious duties all are relevant. Given these, the Court concluded that she was a minister and that even if the school didn't really fire her for a religious reason, the action had to be dismissed.

Two concurrences addressed the test for who will be considered a minister. Justice Thomas would defer to the religious organization's designation of a person as a minister. As long as the organization believed in good faith that the person was a minister, that person would be a minister. Justice Alito and Justice Kagan cautioned that neither formal designation of the title "minister" nor a special religious process to become a minister should be given too much weight. Comparatively few religions refer to their clergy as ministers, and few religions have a formal religious ceremony to confer the title of a member of the clergy. They urged a more functional approach to focus on the role of the person in fulfilling the mission of the religion.

Overall, the Court's recognition of a ministerial exception is not very surprising, nor is the flexible, totality of the circumstances kind of test. I do find the application in this case somewhat vexing, however. The Court really glossed over one of the key points in this case--that the individual plaintiff, in asking for damages or her job, did not ask to be reinstated for her call. She didn't ask to become a minister again; she asked to become a teacher again. She had been a teacher before she was a minister, and there were other teachers who were not ministers. This simply doesn't seem to me to be a situation in which the courts would be dictating to a religious entity who its ministers were supposed to be. That application suggests a much broader meaning to what the ministerial exception protects religious employers from than simply choices about who will be ministers.


January 11, 2012 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Spring Symposia

ConferenceIf you're aware of any spring symposia or conferences that we haven't blogged on recently, please drop me an email or post a comment to this post. 


January 11, 2012 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

O'Brien on Facebook Firings & Section 7

ObChris O'Brien (Boston College - Management) has just posted on SSRN her article (forthcoming Suffolk U. L. Rev.) The First Facebook Firing Case Under Section 7 of the National Labor Relations Act: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media.  Here's the abstract:

The emergence of social media, from Facebook to Myspace and Linkedin to Twitter - much like the earlier evolution of email, IM and web 2.0 - have changed communications, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones, and other data interfaces including iPads and eReaders, and even internet hotspots in motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing.

In the first case of its kind, the National Labor Relations Board (NLRB) issued a complaint against an employer, American Medical Response of Connecticut (AMR), for the suspension and firing of an employee who posted negative comments about her supervisor on her personal password-protected Facebook page. The NLRB alleged the employer retaliated against the terminated employee for her Facebook postings and for requesting a union representative at an investigatory interview that led to her discipline, thus violating her Weingarten right. Most importantly, the NLRB maintained that the employer’s social media policy was overbroad because its rules on blogging and internet posting, standards of conduct relating to discussing co-workers and superiors, and solicitation and distribution, interfered with employees’ rights to engage in concerted activities protected by section 7 of the National Labor Relations Act (NLRA). The AMR case and the NLRB’s ongoing interest in employer social media policies has signaled that the agency will prosecute companies whose policies interfere with employee communications concerning wages, hours, and working conditions, and other matters for mutual aid or protection on social media sites. Employers should review their policies governing employee communications, including the use of email and social media during non-work time, to ensure compliance with the NLRA.


January 11, 2012 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 10, 2012

Knox v. SEIU Oral Argument

Supreme CourtThe Knox case was argued today at the Supreme Court, and you can get the transcript here.  I haven't had a chance to read it yet (in the throws of a new course prep), but perhaps James Young--the plaintiffs' attorney and frequent commenter here--can give us his impression.  Others' take on the argument would be welcome also.  I might post a follow-up once I read it.


January 10, 2012 in Labor and Employment News, Labor Law | Permalink | Comments (4) | TrackBack (0)

Tomorrow's Argument in Coleman v. Maryland Ct. of Appeals

SupctAlthough this Supreme Court term has fewer employment and labor cases or at least fewer foundation-shaking employment and labor cases than the last few terms, that does not mean that there is nothing to pay attention to. Case in point: Coleman v. Maryland Court of Appeals, which will be argued tomorrow on FMLA leave for state employees.

It's a case that brings together two of my favorite topics, family and medical leave and the 11th Amendment. But wait, you might be thinking, didn't the Court already deal with the FMLA and the 11th Amendment in Nevada Dep't of Human Resources v. Hibbs, and didn't the Court find that Congress could subject the states to suits for damages for FMLA violations? The answer would be, yes, but . . . 

You might recall that the plaintiff in Hibbs was a state employee who took leave to care for his sick spouse. He was fired after he exhausted his leave, and he sued under the FMLA's cause of action allowing an employee to sue for damages for interference with, restraint of, or the denial of exercise of FMLA rights. Generally, the 11th Amendment (really actually Article III, but that's kind of a technical federal courts argument that I won't go into here) prohibits suits against unconsenting states for money damages. Congress can abrogate that immunity when it acts validly under the 14th Amendment. In Hibbs, the Court found that the FMLA was validly enacted under the 14th Amendment because it was designed to promote women's equality by ensuring that leave could be taken by both sexes and by encouraging both sexes to take that leave. Traditionally, women have engaged in the bulk of caregiving for young children or adult family members with serious health needs.

That didn't necessarily end the issue, though. Since Hibbs, the Court has increasingly taken an "as applied" approach in its abrogation cases. You might be familiar with Tennessee v. Lane for example, where the Court found that Congress had validly abrogated state sovereign immunity in Title II of the ADA at least insofar as it provided damages actions against states for not providing access to the courts or for inflicting cruel and unusual punishment on prisoners. This stood in stark contrast to Bd. of Trustees of the University of Alabama v. Garrett, where the Court held that Title I of the ADA was not validly enacted under the 14th Amendment, and so Congress could not subject the states to suits for violations of the act.

Which sets the stage for Coleman. The plaintiff in Hibbs took leave to care for his spouse--an act that is still somewhat unusual for men and certainly not consistent with stereotyped expectations of male gender behavior. The FMLA is the Family and Medical Leave Act, though. It mandates leave for people to care for their own serious health conditions as well. The self-care provision might seem more analogous to disabilities and things protected by the Americans with Disabilities Act (not valid under the 14th Amendment) rather than a part of an effort to disrupt discriminatory patterns on the basis of sex (valid under the 14th Amendment).

The plaintiff has argued that the self-care leave is a part of the effort to disrupt discriminatory patterns on the basis of sex, pointing to employer hesitation to hire women because of a perception that they would be more likely to need leave for their own pregnancy-related health issues. The state of Maryland argues that the self-care provision is designed to prohibit discrimination against those with serious health issues, more like the ADA, and even if it were related to sex discrimination, such a remedy is not congruent and proportional to what the 14th Amendment would provide and so not within Congress's abrogation powers.

It will be interesting to see whether the changes in membership on the Court since Hibbs change the tenor of the argument or the Court's approach.

Update: Here's the transcript. No real surprises, although you can see the Justices arguing with each other through their questions more than usual.


January 10, 2012 in Disability, Employment Discrimination, Public Employment Law, Worklife Issues | Permalink | Comments (3) | TrackBack (0)

OSJDR Symposium on the Role of ADR Mechanisms in Public Sector Labor Disputes

OsjdrThe Ohio State Journal on Dispute Resolution will be hosting on February 17 a Symposium on the Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector.  Speakers include Charles Craver (Keynote Speaker), Richard Bales, Howard Bellman, Michael Carrell, Joel Cutcher-Gershenfeld, Michael Green, David Bruce Lipsky, Anne Lofaso, Martin Malin, Saul Rubinstein, Joseph Slater, Lamont Stallworth, and Floyd Weatherspoon.  Here;s a description of the program:

As a result of the economic downturn and government efforts to cut costs, public sector collective bargaining has come to the forefront of the political landscape. The Ohio State Journal on Dispute Resolution Symposium will bring together interdisciplinary scholars and dispute resolution professionals from around the country to examine the current role of ADR mechanisms in public sector collective bargaining and suggest ways to improve negotiations in the future.

The first panel of the Symposium features ADR experts who will provide an overview of the controversy of public sector collective bargaining with particular emphasis on recent legislative developments in Ohio, Wisconsin, and Michigan.

The second panel features a discussion of current ADR practices in the private sector (Fortune 1000 companies) and how the successes or failures of those practices bear on the future of public sector bargaining, if at all. The third panel will focus on the many ways arbitration has played a part in collective bargaining disputes, including the use of mandatory arbitration clauses in collective bargaining agreements, the use of “final offer” arbitration during negotiations, and the emergence of interest arbitration statutes.

The Symposium will conclude with a panel discussion on how continued negotiation between public sector unions and management does in fact advance the public interest. The OSJDR Symposium is an opportunity to explore critically and comprehensively the intersection of alternative dispute resolution and public sector labor concerns.


January 10, 2012 in Arbitration, Conferences & Colloquia, Labor Law, Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Peggy Browning Fund Application Deadline

PbfThe Peggy Browning Fund Fellowship Program application deadline is this Friday, January 13, 2012.  The fund supports 2012 summer fellowships in labor-related organizations throughout the United States, and 2012-2013 School-Year Fellowship that is a part-time position in Chicago.  Students can apply online.


January 10, 2012 in Teaching | Permalink | Comments (0) | TrackBack (0)

Befort: A Public-Sector Bargaining 2-Fer

BefortSteve Befort (Minnesota) has just posted a two-fer on SSRN.  One is Public Sector Employment Under Siege (87 Indiana L.J. (2011)); here's the abstract: 

This article was prepared for a symposium at Indiana University Maurer School of Law on Labor and Employment Law under the Obama Administration. The article analyzes the current spate of attacks on public employees with particular reference to three sub-topics: teacher tenure and evaluation “reform,” the periodic cycles of public sector fiscal crises, and the unilateral modification of public sector collective bargaining agreements. The article concludes with the assessment that cyclical attacks on public sector workers reflect a skewed viewpoint that public employees owe first-class obligations but possess only second-class rights.

The second is The Constitutional Dimension of Unilateral Change in Public Sector Collective Bargaining (27 ABA J. LEL (2012)); here's the abstract:

During cycles of public sector budgetary crises, governmental entities frequently undertake efforts to reduce workforce costs. Sometimes these efforts have gone beyond layoffs and furloughs to include modifications to the terms of existing collective bargaining agreements. In the private sector, such a unilateral alteration would be an unlawful breach of contract and an unfair labor practice. But, unilateral change is more prevalent in the public sector, particularly due to the constitutional structure of state government. This article examines two of these constitutional dimensions. The article first discusses diffused management authority resulting from the separation of powers with particular reference to legislative authority over appropriations. The article then goes on to explore the legality of governmental lawmaking that modifies previously negotiated labor agreements. In both instances, a state legislature that is not defined as an “employer” under the pertinent state labor-management statute may have authority to undo a contract negotiated by the jurisdiction’s executive branch. The article concludes with suggestions for limiting the potential for such mid-term unilateral modifications and for providing the same level of certainty to collective agreements as is afforded to other governmental contracts.


January 10, 2012 in Labor Law, Public Employment Law, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, January 9, 2012

Recently Published Scholarship


  • Charles Sullivan, Mastering the Faithless Servant? Reconciling Employment Law, Contract Law, and Fiduciary Duty, 2011 Wisconsin L. Rev. 777.
  • Lori Hoetger, Did My Boss Just Read That? Applying a Coding vs. Content Distinction in Determining Government Employees' Reasonable Expectation of Privacy in Employer-Provided Electronic Communications After Quon, 90 Nebraska L. Rev. 559 (2011).
  • Shima Baradaran & Stephanie Barclay, Fair Trade and Child Labor, 43 Columbia Human Rts. L. Rev. 1 (2011).
  • Michelle Eviston & Richard Bales, Capping the Costs of Consumer & Employment Arbitration, 42 U. Toledo L. Rev. 903 (2011).
  • Trevor Levine, Two Worlds Collide: Salary Arbitration for NHL Players in the Salary Cap Era, 26 Ohio St. J. Disp. Resol. 729 (2011).
  • Scott C. thompson, Open for Business: The ADA Beyond an Employer's Front Door, 18 Texas Wesleyan L. Rev. 383 (2011).
  • Charles Hill, Legislating by Proxy: Did President Obama Amend the Texas Labor Code When He Signed the Lilly Ledbetter Fair Pay Act?, 18 Texas Wesleyan L. Rev. 337 (2011).


January 9, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 8, 2012

NLRB Rules Workplace Class-Action Bans Violate 8(a)(1)

NlrbThe National Labor Relations Board ruled Friday in the D.R. Horton case that employers violate NLRA Section 8(a)(1) by requiring employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court. From the Board's press release:

The decision examined one such agreement used by nationwide homebuilder , under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees

The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act.  The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.

I think this is huge and that it is exactly the right decision, for the same reasons I thought the Supreme Court got the consumer class-action ban issue wrong in AT&T Mobility v. Concepcion.  Unfortunately, I would assume this will not be the last we will see of this issue.


January 8, 2012 in Arbitration, Labor Law | Permalink | Comments (1) | TrackBack (0)

Call for Comparative / Int'l LEL Papers: Marco Biagi Award

BiagiSteve Willborn (Nebraska) sends notice of the Call for Papers for the 2012 Marco Biagi Award.  This is an annual award for the best paper on comparative or international labor law by a young scholar.  The award is sponsored by the International Association of Labor Law Journals (IALLJ), a consortium of 21 of the leading labor law journals from around the world.  The award is named for Marco Biagi (photo at left), a founder of the IALLJ and one of the world’s most prominent labor law scholars, who was assassinated in 2002 by the Red Brigade for his prominent role in labor law reform in Italy.  More information on the Biagi Award can be found here,or contact Steve with any questions.


January 8, 2012 in Conferences & Colloquia, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)