May 19, 2012
NEA Law Fellows
The NEA Law Fellow will work primarily with lawyers in the NEA Office of General Counsel and with other union lawyers around the country on a wide range of activities. The Fellow will assist experienced
lawyers working on cases and regulatory matters that affect public education and the rights of educators.
Whenever possible, the NEA Law Fellow will be given the opportunity to participate in meetings with
union lawyers and to attend hearings and other events in the DC area. The NEA Law Fellow will work out of NEA’s Office of General Counsel at NEA’s headquarters in Washington D.C. The fellowship is for a
period of one year (through August 31, 2013). Full vacation and health benefits are provided. Salary is
commensurate with experience and in the range of $50 - $60,000 per year. Recent law graduates and
judicial clerks are welcome to apply.
For more information see the full announcement [Download NEA Law Fellow_2012].
Lurie on Government Pension Problems
Alvin Lurie has recently posted on BenefitsLink called, "Can Peter's Sponsor Borrow From Peter To Pay Peter?" The intro:
Whose skin is in the game when pension plans make loans to plan sponsors to pay pension contributions, and is the answer different if the plan sponsor is a government body?
Those questions come to mind on learning that last year the highest elected officials in New York State authorized financially distressed local governments in the state to use a problematic borrowing scheme to defer a portion of their pension liabilities, by, in effect, borrowing from the state pension system to satisfy significant percentages of contributions owed to the pension trust for the retirement benefits of their respective employees. In fact, more than just permitting its municipalities to engage in this financing scheme, the state itself went to that same window to cover a portion of its own pension liabilities. Some observers have called it "irresponsible." The more pressing question is whether it is legal or just a skin game.
Lurie provides a lot of info on the issue, so check it out.
May 17, 2012
Berrey, Hoffman, and Nielsen on Claimants' Views of Employment Discrimination Litigation
Thanks to Michael Green (Texas Wesleyan) for the pointer that there was a brief article on the ABA website a few days ago referring to an American Bar Foundation study recently published in the Law and Society Review: Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation, by Ellen Berrey, Steve Hoffman, and Laura Beth Nielsen.
The study suggests that more than half of employment discrimination claimants feel that their lawyers are incompetent. As Michael observes, although the ABA on-line journal article title suggests the study focuses on the employee complaints about competency of their attorneys, the actual study has a lot of interesting information and addresses broader concerns about what employer representatives and employees involved in discrimination litigation think about the process and how unfair both sides perceive it to be.
I myself wonder whether the fact that so many employment discrimination plaintiffs lose their cases today (and on 12(b)(6) motions under Iqbal and Twombly) translates into these claimants getting a false impression that their attorneys are not doing everything they possibly can do to help them. This is not to say that there are not some incompetent attorneys out there (especially those that just dabble in employment discrimination law practice), but the numbers the study reports seem to be showing that claimants don't understand how the system (adminsitratively and legally) is structurally stacked against them.
If you're a relatively new scholar interested in participating in Seton Hall's Employment & Labor Law Forum, this year held on October 5th to 6th, this is a reminder that your proposal is due by Friday, June 1st.
They should be three-to-five pages in length and sent to Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or firstname.lastname@example.org.
ABA Int'l LEL Conference
I finished my grading early this semester so I could attend the ABA International Labor and Employment Law Committee meeting this week in Paris. Marley Weiss (Maryland) and Richard Carlson (South Texas) were among the attendees. One of the best presentations of the conference was on labor/employment issues in a globalized airline industry.
This is a great conference to attend, not only for the presentations, but for the networking opportunities. More than half the attendees are non-Americans, with a heavy dose of Europeans. The Committee leaders are exceptionally welcoming of new members, and there are plenty of writing and speaking opportunities. Plus, the Committee meets in places that are not half bad to visit. Next year's meeting will be in Rome.
If you're interested in getting involved on this Committee, drop me an email.
Fisk & Barry: Restatement is Really Awful on Noncompetes
Catherine Fisk (UC-Irvine) and Adam Patrick Barry (UC-Irvine class of 2013) have just posted on SSRN their article (forthcoming 16 EREPJ 2012) Contingent Loyalty and Restricted Exit: Commentary on the Restatement of Employment Law. Here's the abstract:
Chapter 8 of the American Law Institute’s Restatement of Employment Law proposes bad law in every sense of the word when it restricts job mobility of current and former employees by imposing a general duty of loyalty and providing for enforcement of non-compete agreements. Its rules are vague and confusing on crucial issues where clarity and precision are needed. In allowing employers to prevent current and former employees from engaging in competitive employment, Chapter 8 is out of sync with the assumptions underlying the at will rule articulated in Chapter 2 of the Restatement, which insists that employment is an at will relationship that either side can terminate in order to pursue more lucrative opportunities with other contracting partners. It is also out of sync with the norms of many contemporary employment relationships in which employees are expected to bring their knowledge and skills to every job and to depart, perhaps after a relatively short-term period of employment, with enhanced knowledge and skills. The only legitimate interests employers have in restraining competition by current or former employees are protected by the law of misappropriation of trade secrets, by the torts of interference with contract and interference with prospective business advantage, and by the corporate opportunity doctrine for managerial employees who owe a fiduciary duty to the firm. The duty of loyalty, as stated in the Restatement and as applied by courts, adds no legitimate protection to employers and is simply anticompetitive. More important, in allowing employers to resort to contract and tort liability to restrict labor market mobility, the Restatement ignores a substantial body of empirical research showing that legal restrictions on mobility are bad for employees, bad for firms, and bad for the economy as a whole. Courts should approach provisions of Chapter 8 skeptically. If they do, the Restatement may fail in its aspirations to shape the law, but at least it will not fail in the ALI’s goal of improving the law.
May 15, 2012
Register for the Labor and Employment Law Colloquium in Chicago!
Come one and come all! Now that exam grading and graduation are winding down, don't forget to register for the next edition of the labor and employment law colloquium, the must attend labor and employment law prof event of the year.
Here's the 411:
Northwestern University School of Law and Loyola University Chicago School of Law are pleased to announce that they will co-host the Colloquium on Current Scholarship in Labor and Employment Law on September 14 and 15, 2012 in Chicago, IL.
The Colloquium, now in its seventh year, provides an opportunity for labor and employment law scholars to present works-in-progress and receive feedback from their colleagues in the field.
Friday, September 14, 2012 - Loyola University Chicago School of Law
Saturday, September 15, 2012 - Northwestern University School of Law
Deadline August 10, 2012
You can register here.
May 14, 2012
Court Strikes Down the NLRB's New Election Rules
[UPDATE: In light of this decision, the Board is temporarily suspending application of the new rules.]
It's now [ahem, 0-1] against the NLRB's new election rules, courtesy of Judge Boasberg in the D.C. federal district court (who was an Obama appointee). The grounds of this decision are different, however, as the judge held only that the NLRB's voting was improper. This was because Member Hayes never formally made a dissenting vote. According to the judge, this means the Board acted with only two members, which deprived it of a quorum.
As I noted when this argument was first made, I don't think it has any merit. The judge agreed that an abstention could not deprive the Board of a quorum, which is the main point I had focused on. Instead, the judge rejected the Board's argument that Hayes had "electronically" abstained by refusing to issue a formal vote once the rule was circulated ("The NLRB’s claim that Hayes was part of the quorum that adopted the final rule, then, is based only on the fact that he was a member of the Board at the time the rule was circulated and thus was sent a notification that it had been called for a vote."). I'm still not buying that argument, but I'll concede that it's not totally laughable. But the decision itself shows at least one of the problems with this holding when it states that Hayes' lack of action would've counted for the quorum if more time had passed between the rule's circulation and its adoption. How long is long enough? And, if remaining silent is enough to deprive the Board of a quorum in this short term, why should it matter if the silence lasts longer? Either way, if this is how the rule falls, it's easy enough to fix wiht a new vote.
Hat Tip: Patrick Kavanagh & Paul Secunda