Saturday, June 30, 2012
Carolyn Lerner, who has been the head of the Office of Special Counsel has been getting rave reviews (it doesn't hurt that her predecessor's tenure was a train wreck). The Washington Post recently published an interview with Lerner. Nothing too earth-shattering, but still interesting--especially her plugging of the pending reform bill, the Whistleblower Protection Enhancement Act.
Wednesday, June 27, 2012
Richard Moberly (Nebraska) has just posted an article to SSRN: Whistleblowers and the Obama Presidency: The National Security Dilemma. It will be published this fall in the Employee Rights and Employment Policy Journal as part of their symposium on "The Workplace Law Agenda of the Obama Administration."
Here is the abstract:
As a candidate for President, Barack Obama promised to protect whistleblowers because they are, in his words, “watchdogs of wrongdoing and partners in performance.” Three years into his Presidency, Obama’s record often demonstrates strong support for employees who disclose government misconduct. He appointed whistleblower-rights supporters to key administrative posts and fought to include robust whistleblower protections in his key legislative accomplishments, such as the economic stimulus package, health care reform and the financial reform bill. However, the Obama Administration’s treatment of national security whistleblowers has been decidedly less emphatic and more nuanced. His Administration aggressively prosecuted unauthorized disclosures related to national security and objected to reporters claiming a privilege not to reveal their sources. Moreover, a substantial legislative reform of federal employee whistleblower protections remained in limbo for much of Obama’s Presidency in part because of his Administration’s concern that the proposed law would provide too many rights to national security whistleblowers. This Article examines and critiques this apparent contradiction in President Obama’s whistleblower agenda and also explores ways in which the Obama Administration might satisfy its national security policy objectives without undermining whistleblower protection.
This is a must-read article for anyone who follows current developments in whistleblower protection law. Moberly is one of the national authorities in this area of workplace law and his remarks about the good and bad of Obama's approach to whistleblowing should give administration officials and other interested parties much to think about.
For me, effective whistleblower laws, whether constitutional, statutory, or common law-based, are an essential tool to permit federal, state, and local employees to be the vanguard of the citizenry. With effective laws, these public employees are able to protect the rest of us from government fraud, abuse, and waste without endangering their own job security.
Sachin Pandya has posted on SSRN his article, "Tax Liability for Wage Theft," which is appearing in the Columbia Journal of Tax Law. The abstract:
This paper shows how, under existing tax law, illegal wage underpayment by an employer (sometimes called “wage theft”) may generate employer tax liability for unreported income or disallowed business expense deductions. Given that the tax authority needs information from the underpaid worker to prove such liability, the paper identifies two ways that a worker can transmit that information to a tax authority: becoming a tax informant, or bringing a qui tam action under a state false claims act. Finally, the paper discusses possible influences on the decision of the unpaid worker to inform on the employer to the tax authority, and considers the conditions under which a tax authority is likely to audit an employer based on such information. In so doing, the paper identifies a new approach to combating wage theft and an undiscovered implication of basic income tax law.
An interesting take on the wage theft problem--and I'm always a fan of anything involving qui tam actions--so check it out.
Tuesday, June 26, 2012
- The unique aspects to working at an Apple retail store. Or, "why do a lot people want sell a ton of stuff for low wages?"
- The RLA, American Airlines, the FAA funding bill, and retroactivity. This article describes a case involving these issues as possibly spelling the real end to unions. I don't buy that description, but it's an interesting case not getting much attention.
- The NLRB creates a new webpage showing cases involving non-union concerted and protected activity. I've long thought the Board should do more in this area, so I'm a fan. Even if you're not, the website does a nice job conveying info and shows why the NLRB has been a web leader among federal agencies for a while.
- Justin Keith on the D.C. Circuit's recent Du Pont case, which remanded to the Board to explain how the result fit with its precedent.
- The Board (a couple of weeks ago) asks judge to reconsider ruling against new election rules.
Hat Tips: Matt Bodie, Patrick Kavanagh
I'm moving to the top this post by Matt Bodie, cross-posted from PrawfsBlawg. It's received 15 comments -- those comments are after the jump. [JH: Also, a related post by Ben Sachs (Harvard) can be found here.]
Earlier this week, the WSJ touted a new Manhattan Institute study showing that political contributions by corporations have a positive effect on the bottom line. The study found that "most firms, like most individuals, behave rationally and strategically in their spending decisions on campaigns and lobbying, devoting resources in ways that, they have reason to expect, will benefit the corporations themselves and their shareholders." And benefits do come, in the form of lower taxes, more favorable regulation, and earmarks that help the business. The authors calculate that these political benefits improve returns for shareholders by 2% to 5% a year.
It should not be a surprise that corporate political spending helps corporations. This recent study follows upon research by Jill Fisch on FedEx's political spending, which found that "FedEx has successfully used its political influence to shape legislation, and FedEx's political success has, in turn, shaped its overall business strategy." The WSJ uses the Manhattan Institute report to beat back critics of Citizens United who are looking to get corporations out of politics. The Journal opines:
Liberals have been trying to persuade CEOs and corporate boards to stop spending money on politics by claiming that it doesn't pay. But according to a new study by the cofounder of the Democratic-leaning Progressive Policy Institute, corporate participation in politics works for the companies and their shareholders. * * *
In a better world, corporations wouldn't have to devote money and time to politics. . . . But politicians have created a gargantuan state that is so intrusive that businesses have no alternative than to spend money to defend themselves and their shareholders from such arbitrary looting as the medical device tax in ObamaCare. Liberals want business to disarm unilaterally.
Oddly, neither the Journal nor the Supreme Court seem to understand these principles when it comes to unions.
In today's Knox v. SEIU, the Court again privileges the rights of represented employees to opt out--or rather, not to have to opt-out in the first place--from union political spending. The Court clings to the trope that the union's political spending is somehow extraneous to the core services provided by the union to the represented employees. But political spending is perhaps even more important to unions than it is to corporations. I have posted before about SEIU's electoral activity, but it bears repeating--SEIU spent an estimated $85 million to help elect Barack Obama in 2008. Although the Obama administration failed to get the Employee Free Choice Act passed, it did pass healthcare reform -- which was arguably more of a SEIU priority. (See Chapter 9 of this book by Steve Early, entitled "How EFCA Died for Obamacare"). Former SEIU President Andy Stern had the highest number of oval office visits of any outsider--22--during the president's first six months in office. Stern was not in there based on his individual perspicacity about the nation's various problems. He was in there as president of the fastest-growing union in the U.S. -- one whose members largely worked in the health care field and would benefit from an expansion of health care benefits.
Knox v. SEIU concerns a "Political Fight-Back Fund" levied against represented employees, including nonmembers, to fund political activities in California. Two propositions were on the California ballot: Proposition 75, which would have required an opt-in system for charging members fees to be used for political purposes, and Proposition 76, which would have given the Governor the ability to reduce state appropriations for public-employee compensation. In response to the petitioner's objection to the special assessment, an SEIU employee said, "we are in the fight of our lives," and it's easy to see the urgency. If you accede to the principles that (1) employees can choose as a majority whether to have union representation, and (2) all represented employees need to pay for their representation, then political spending should not be excluded. In an era where state governments are reconsidering collective bargaining rights for public sector unions, political spending is critical to the unions' very existence as businesses. Unions need to have collective bargaining rights in order to bargain collectively on behalf of represented employees.
The majority's opinion in Knox v. SEIU assumes the distinction between collective bargaining expenses and political expenses without much discussion, other than an interesting block-quote from a Clyde Summers's book review. (I would argue that all of Summers' examples don't really prove his or the Court's point.) And at this point, not even the dissent questions the Hudson framework. But it makes no sense. Unions and academics should start fighting the framework: unions are businesses, and political spending is business spending.
I did see one glimmer in the Court's opinion, in the following passage:
Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights.
The Manhattan Institute report, like the Wall Street Journal, recognizes that corporations are not merely "express[ing] their views on political and social issues" when they make political contributions. They are fighting for their businesses. The Court should not continue to disarm unions unilaterally in a post-Citizens United world.
Monday, June 25, 2012
As the nation now waits until Thursday for the healthcare decision, this post focuses on a number of labor and employment law case law happenings as far as other new Court decisions and new certiorari grants.
On the decision side, the Supreme Court invalidated an Arizona law today in Arizona v. United States (US Supreme Ct 06/25/2012) that would have made it a crime "for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." The Court affirmed that this portion of the Arizona statute is preempted by the Immigration Reform and Control Act of 1986 (IRCA) because that federal law has a comprehensive framework that makes it illegal for employers to knowingly employ unauthorized workers and that framework does not impose federal criminal sanctions on the undocumented workers. Therefore, a state law cannot impose criminal sanctions for this conduct either.
On the cert. side, the Supreme Court took both a Title VII and ERISA case. In Vance v. Ball State University, the 7th Circuit concluded the authority to direct an employee's daily activities does not establishes supervisory status under Title VII. The Supreme Court will decide "whether as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth 'supervisor' liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to 'hire, fire, demote, promote, transfer, or discipline' their victim."
Finally, an ERISA case of the reimbursement (Knudson/Sereboff) variety has made it to the court. In U.S. Airways Inc. v. McCutchen, the Court will consider whether courts are authorized to use equitable principles to rewrite contractual benefit plan language and refuse to order plan participants to reimburse their plan for benefits paid, even in cases in which the plan's terms give it an absolute right to full reimbursement. The appellate courts have been divided oveer whether ERISA Section 502(a)(3) authorizes courts to take such steps.
The following request came to me yesterday from a LEL professor at a university outside the U.S., and I thought it the perfect subject for crowdsourcing. What do you consider to be the most important foundational books/articles on American labor/employment law?
Could you please advise me on the bibliographic data (or just the names and the authors) of the papers and/or books (textbooks and/or monographs) devoted, wholly or partly, towards the historical and theoretical foundations of labour and employment law, which are considered to be major scholarly sources in the teaching of these disciplines in the US universities? It might be publications on the discipline as a whole or on some specific aspect which is considered a unique feature or an institution or a concept or a doctrine, which exists now or existed in the history of the US labour and employment law (like f.i. an employment-at-will doctrine, which most of us are somewhat familiar with, but not confined to it).
Please reply by posting a comment.
- Stephanie Bornstein, The Law of Gender Stereotyping and the Work-Family Conflicts of Men, 63 Hastings L.J. 1297 (2012).
- Jon M. Philipson, Owner Beware: OSHA's Impact on Tort Litigation by Independent Contractors' Injured Employeees Against Business Premises Owners, 66 U. Miami L. Rev. 987 (2012).
- Bryan C. Sawyers, The Inconvenient Worker: Can Mississippi's Public Policy Exceptions to the Employment-at-Will Doctrine Be Expanded to Encompass the Exercise of Workers' Compensation Rights?, 81 Miss. L.J. 1563 (2012).
Sunday, June 24, 2012
My former colleague, Alex Long (Tennessee) passed along word about an interesting retaliation case, Ketterer v. Yellow Transportation. In Ketterer, the Fifth Circuit held that co-worker harassment wasn't actionable unless it was done in futherance of the employer's business--a minority view. There's a cert petition and amicus brief from several employment law professors. No action yet from the Court on the petition, but stay tuned.