July 6, 2012
Lofaso on Knox Decision
Adding to our good discussion of the Supreme Court's Knox decision (see here and here) are two pieces by Anne Lofaso (WVA). She's got a shorter blog post and a longer analysis. Part of the blog posting:
We might ask why the Court fails to exhibit the same sympathy for worker coercion when perpetrated by corporations as it does when perpetrated by the government or a union. In all fairness, private coercion does not ordinarily implicate the Constitution. But the Court’s main argument is not a constitutional one. The Court had never previously held that workers were required to pay for politically objectionable union activity. It had only held that it was constitutional for a union and a public employer to require objectors to opt-out. Now the court, relying on a policy argument based on who should bear the burden rather than a constitutional argument, holds for the first time that only the opt-out pathway is constitutional, at least in some circumstances. The Court’s holding, especially when read in light of its dicta questioning its prior precedent, is a major step toward declaring the non-RTW state unconstitutional as it relates to public employees. And this was all done without the benefit of briefing or oral argument. This type of judicial activism should lead us to question whether the Roberts Court views cases such as these through anti-union lenses. It should also make labor academics think about what they can do to educate people about the law, their rights, and the history of unions, which have paved the path (often funded by union dues) for every significant employment right granted in the last century.
Check them out.
July 3, 2012
Tex. Sup. Ct.: No Age Claim If Replacement Is Older than Fired Ee
Mike Maslanka over at Work Matters posts on Mission Consolidated Independent School District v. Garcia, a Texas Supreme Court opinion from last week. A 48-year-old employee was fired and replaced by a 51-year-old. The fired employee brought an age claim. The employer moved to dismiss; both the trial and appellate courts ref used. The Texas Supreme Court, however, reversed, holding that as a matter of law there is no age age discrimination if a fired employee is replaced by someone older.
This in my mind raises four distinct problems. First, it misstates the law (at least, federal law under Title VII). Second, it's logically incorrect -- a later decision to hire someone older may say little or nothing about the earlier motive to fire, especially if more than one person is involved in one or both of the employment decisions. Third, it invites employers to use later hiring decisions to "cover up" discriminatory firing decisions. Finally, as Mike points out, the Texas rule logically should apply equally to race and sex cases -- no sex claim if the replacement is a woman! -- and to the best of my knowledge no court has gone there.
The latter two points indicate a particularly pernicious potential impact of this ruling: it could encourage an employer to cover up one act of discrimination (the firing) with a second act of discrimination (intentionally hiring a person of a particular race/sex/age/etc.) in an attempt to nuke the fired employee's discrimination claim.
July 2, 2012
Call for LEL Papers: Washburn L.J.
The Washburn Law Journal is pleased to announce that the Spring 2013 issue of the Journal will be devoted to current scholarship in the areas of Labor and Employment Law. The Washburn Law Journal is seeking submissions that address emerging topics under this general umbrella.
Possible topics include, but are not limited to:
- Technology in the workplace – emerging issues for employees and employers;
- The Americans with Disabilities Act and American with Disabilities Act Amendments Act of 2008, including accommodations for veterans suffering from PTSD and/or TBI
- The NLRB’s attempted assertion of jurisdiction over tribal entities
- Applying Old Law to New Issues: NLRB and Social Media Policies
- Use of Social Media in Hiring: Implications for Privacy and Discrimination lawsuits
- The EEOC’s new enforcement guidance on the use of conviction and arrest records
- The EEOC’s final rule on the ADEA’s “reasonable factors other than age” defense
- Recent decisions regarding discrimination against transgender persons
Scholars in the areas of labor and employment law are invited to submit paper proposals, 3-5 pages in length, by August 1, 2012. Proposals should be sent to Dayton Hall, Articles Editor. Papers will be selected to ensure a wide range of topics.
Final drafts of papers are due by March 11, 2013. The articles will be published in Volume 52, Issue 3 of the Washburn Law Journal in Spring 2013.
Questions can be submitted to Dayton Hall, Articles Editor, or Julie Covel, Editor-in-Chief.
Jeff Hirsch (North Carolina) has just posted on SSRN A Comparative Perspective on Unjust Dismissal Laws. This is a chapter in Sam Estreicher's Global Labor and Employment Law: Reports from Law Offices Worldwide (2012). Here's the abstract:
This book chapter is based on a larger project with Samuel Estreicher in which we examine in detail the unjust dismissals regimes of numerous countries. The study of these laws goes beyond the text of the relevant statues and cases, as it uses input from foreign employment law practioners and available data — particularly claimants’ success rates and average remedies — in an attempt to observe how the laws actually operate in practice.
The conclusion drawn from this study challenges the common “American exceptionalism” premise that argues that adopting a just cause rule would place the U.S. in the same company as the rest of the world. It is true that most countries provide employees with more protection against unjust dismissals than the U.S. But even on paper, the protections in many of the surveyed countries are often weaker than the typical American view of just cause protection assumes. Moreover, the actual practice in these countries frequently reveals even less protection, particularly when remedies are taken into account. These considerations make American dismissal law, although certainly weaker, appear less than exceptional.
In addition, the variances in unjust dismissal regimes suggest that many economic studies of employment protection fail to account for the full range of differences that exist among countries. For instance, a study on the effect of employment regulation on a country’s or firms’ economic performance should not rely solely on the laws as they are written because similar looking laws may have substantially different effects due to their available remedies or other operational disparities. Thus, studies should do more to account for these differences or, where appropriate data are unavailable, at least acknowledge that limitation.
Recently Published Scholarship
- Jeanette Cox, Pregnancy as "Disability" and the Amended Americans with Disabilities Act, liii Boston College L. Rev. 443 (2012).
- Charles P. Mileski, The Lost but Not Forgotten: Applicants with Severe Disabilities, Title I of the ADA, and Retail Corporations, 40 Hofstra L. Rev. 553 (2012).