July 14, 2012
Recently Published Scholarship
- Charles P. Mileski, Those Lost but Not Forgotten: Applicants with Severe Disabilities, Title I of the ADA, and Retail Corporations, 40 Hofstra L. Rev. 553 (2011).
July 13, 2012
Citizens United + Public Pensions = Compelled Speech
In its Citizens United decision, the Supreme Court held that companies have a First Amendment right to make electoral expenditures with general corporate treasuries. And they’ve done so, with relish, pouring millions into the political system.
What Citizens United failed to account for, however, is that a significant portion of the money that corporations are spending on politics is financed by equity capital provided by public pension funds — capital contributions that the government requires public employees to finance with their paychecks.
This consequence of Citizens United is perverse: requiring public employees to finance corporate electoral spending amounts to compelled political speech and association, something the First Amendment flatly forbids.
Contrast this situation with how the court treats political spending by unions. In many states, public employees are required to pay dues to a labor union. If the public employees union were to spend any of the money raised through dues on politics, the court has ruled, the dues requirement would amount to forced political speech and association. To prevent this First Amendment violation, the court has held that no union may use an employee’s dues for political purposes if the employee objects.
The same should be true for pension funds and corporate politics.
Hat tip to Joe Slater (Toledo) for posting a link to this article on facebook.
July 12, 2012
My UNC colleagues, John Coyle and Gregg Polsky have just posted on SSRN their article, "Acqui-Hiring." The abstract:
Apple, Google, Facebook, and other prominent technology companies in Silicon Valley are buying start-up companies at a brisk pace. In many of these transactions, the buyer has little interest in acquiring the start-up’s projects or assets. Instead, the buyer’s primary motivation is to hire some or all of the start-up’s software engineers. These so-called “acqui-hires” represent a novel — and increasingly common — tool by which the largest and most successful technology companies in the world satisfy their intense demand for engineering talent.
To date, the acqui-hire has attracted no attention in the academic or professional legal literature. This Article aspires to fill this gap. Drawing on interviews with Silicon Valley entrepreneurs, start-up investors, buyer representatives, and lawyers, we offer the first formal description of the acqui-hire. In so doing, we seek to enrich the understanding of those already acquainted with the acqui-hire while also providing a comprehensive account of this transaction structure to the uninitiated.
The Article also identifies — and seeks to solve — a significant puzzle stemming from the acqui-hire phenomenon. If a large technology company wants to hire a team of software engineers, why go to all of the trouble and expense of acquiring the company that currently employs them? Why not simply hire away the individuals that it wants? We argue that the solution to the puzzle lies primarily in the way that social norms and the threat of informal sanctions shape the behavior of Silicon Valley software engineers. Although California law strongly supports the principle of employee mobility, social norms lead many engineers to pursue acqui-hires in lieu of defecting. We buttress this norms-based account with insights from prospect theory and tax law to show that the unique structure of the acqui-hire reduces its perceived and actual costs, which in turn promotes these transactions.
The Article then considers the most significant economic issue common to all acqui-hires: how to allocate the buyer’s aggregate purchase price between the software engineers and the start-up’s outside investors. We first predict that a money-back-for-the-investors norm will eventually develop and that this norm will drive allocation determinations. We then evaluate the effectiveness of potential contractual innovations that could be designed to augment the investors’ allocations in acqui-hires.
The article highlights what, to me at least, was an unknown and interesting phenomenon. It very well may be the result of a unique market, but it also describes a counter-intuitive employment scenario that is worth paying attention to. Software engineers in Silicon Valley are in high demand (and are free from worrying about covenants not to compete), but they seem to be forgoing a not-insignificant amount of compensation in these deals. The artice suggests some reasons why that may be the case, but I think (as do the authors) that the acqui-hiring phenomenon should lead to some questions about whether basic models of employee/employer behavior are always accurate.
Call for Papers: 2013 ERISA Conference: Regulation of Benefit Plans: The Most Consequential Subject to Which No One Pays Enough Attention
The co-organizers of the 2013 ERISA Conference, Dana Muir (Michigan Business) and Andrew Stumpff (Michigan Law) have issued a Call for Papers for Regulation of Benefit Plans: The Most Consequential Subject to Which No One Pays Enough Attention.
The conference is scheduled to take place on Friday, March 22, 2013 at the University of Michigan, Stephen M. Ross School of Business.
The conference organizes welcome your ideas and paper proposals. They also plan to have a lunch roundtable to discuss the disconnect between the perception people have of ERISA as a narrow field and its actual importance and breadth. Their goal is to develop strategies to remedy the misperception.
Here are some important dates for the conference:
1. September 21, 2012. Please submit an abstract of 150-250 words and an outline of up to 3 pages to both Dana and Andrew via email (firstname.lastname@example.org & email@example.com).
2. October 5, 2012. Dana and Andrew will notify people of decisions on acceptance. They hope that if your paper is accepted that you are able to commit on October 5 to finishing it by March 1 and presenting it on March 22.
For further information contact either Dana (firstname.lastname@example.org) or Andrew (email@example.com).
July 10, 2012
Pandya on Unpacking the Employee-Misconduct Defense
Sachin S. Pandya (Connecticut Law) has just posted on SSRN his new piece: Unpacking the Employee-Misconduct Defense. It appears in the University of Pennsylvania Journal of Business Law 14(4) (2012): 867-925.
Here is the abstract:
When a worker sues an employer, the employer sometimes learns thereafter that the worker had committed some misconduct at the time of hire or while on the job. In those cases, most American work laws provide the employer with a defense that precludes employer liability, or at least limits remedies, if the employer shows that, had it known of the worker’s misconduct at the time of its allegedly wrongful act, it would have fired the worker because of that misconduct. This Article evaluates the prevailing arguments for and against the employee-misconduct defense as it appears in the National Labor Relations Act, federal and state employment discrimination and retaliation statutes, state contract and tort law, as well as state workers’ compensation statutes. It finds that virtually all of these arguments (both for and against) are incomplete, incoherent, or rely on unverified empirical premises. This finding implies that, though pervasive, virtually no sound reason currently exists for adopting the defense or (apart from stare decisis) continuing to apply it.
I had the privilege of watching Sachin deliver this piece last month at the Warns Labor and Employment Law Institute in Louisville, KY. It is a thoughtful and comprehensive consideration of an employment law defense that re-occurs throughout different parts of labor and employment law. Sachin highlights some of the contradictions in the doctrine and makes some important suggestions for reform. Check it out!
Call for Papers and Young Scholars Workshop for Eleventh International Conference in Commemoration of Marco Biagi
The first is the call for papers for Eleventh International Conference in Commemoration of Marco Biagi, which will be held March 18-19, 2013. This year's theme is "The Transnational Dimension of Labour Relations: A New Order in the Making?"
The second is the call for papers for the Marco Biagi Foundation's Young Scholars Workshop, which will be held during the afternoon of March 19, 2013. Susan notes that the 2012 workshop, featuring 10 papers presented by doctoral and post-doctoral students from multiple countries, was an exciting and successful event. Questions about either event may be directed to Professor Iacopo Senatori at: firstname.lastname@example.org
Sperino on State Antidiscrimination Law
Over the past few decades, federal discrimination law has become captive to an increasingly complex web of analytical frameworks. The courts have been unable to articulate a consistent causation or intent standard for federal law or to provide a uniform account of the type of injury the plaintiff is required to suffer. Part of this failure is demonstrated in the ever-increasing rift between how courts construct the discrimination inquiry for federal age discrimination claims and claims based on other traits, such as sex and race.
Unfortunately, the courts are unnecessarily taking state employment discrimination claims into this federal morass. When considering state claims, courts often construe state statutes to adhere to federal standards without any principled basis for doing so.
This article makes three central contributions. First, it describes how complex frameworks mold the federal discrimination inquiry. Second, it provides a historical narrative regarding the development of state employment discrimination law. This narrative demonstrates that much of the precedent used to justify importing federal standards to state claims should not apply to many of the cases in which it is used. It also shows that there are fundamental differences between state and federal statutes that militate in favor of interpreting them differently. Finally, the paper demonstrates how state law could become a model for further reform of federal anti-discrimination statutes.
Interpreting state statutes in tandem with federal law creates state regimes that are unmoored from their statutory language and ignores key differences between federal and state protections. More importantly, the ongoing dialogue regarding causation and harm is largely driven by underlying assumptions about whether discrimination is still happening, about how it manifests itself, and about how and whether society should address such concerns. The proof structures the courts have designed to think about these issues in the federal context frame the discrimination inquiry narrowly and are procedurally confusing. Ignoring that states may have different preferences raises serious concerns about the proper role of federalism in employment discrimination law.
Importantly, if courts would look at the way state statutes are constructed, they could discover a more elegant, unified way of considering discrimination claims, a way not marred by the recent disarray of federal law. Many states chose to prohibit a myriad of protected traits within one statutory regime. Further, many state employment discrimination statutes address not only employment, but also other areas such as fair housing.
July 9, 2012
Labor & Employment Roundup
- A New York TImes op-ed from Professors Eileen Boris & Jennifer Klein on the plight of home-care workers.
- Slate looks at some Facebook cases at the NLRB.
- The NLRB (2-1) concludes that a policy preventing off-duty access except when the employer permits visits for hospital-related business violates the Tri-County doctrine.
- Sadly, Joyce Miller, labor activist and feminist, has died.
Hat Tip: Joylene Miller & Dennis Walsh
Herbert on The Chill of a Wintry Light: Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment
Friend of the blog, Bill Herbert, just posted his latest article on SSRN: The Chill of a Wintry Light: Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment. It is scheduled to be published by the University of Toledo Law Review.
The article analyzes Borough of Duryea v. Guarnieri in the context of American public sector labor history, which includes a legacy of explicit prohibitions on public employees petitioning for improved working conditions and limitations on their right to freely associate for mutual aid and protection.
Herbert argues that in reaching its decision in Borough of Duryea, the Court overlooked the centrality of petitioning in public sector labor relations. The article closely examines the factual and the state legal background of the case to highlight the importance of statutory and contractual protections in public employment, and the pitfalls when those protections are abandoned in favor of constitutional litigation. Finally, the article examines the overlooked question of what enforceable constitutional rights remain for public employees if or when statutory protections and rights are eliminated or substantially curtailed.
Looks very interesting. Check it out!
Seventh Annual Labor & Employment Law Colloquium Update
Catherine L. Fisk, Chancellor’s Professor of Law, University of California, Irvine, School of Law, will speak at lunch on Friday.
Second, the Loyola Law Journal will publish a symposium based on papers presented at the Colloquium. Since the symposium will appear in its issue #3, manuscripts should be submitted by late September or early October. Publication is expected in April, 2013.
There is also still time to register, see, http://www.law.northwestern.edu/faculty/conferences/labor/
July 8, 2012
June Unemployment Report
As many of you have probably already seen, the Department of Labor released its June employment data on Friday. Things are still muddling on, with an addition of 80,000 jobs and the unemployment rate steady at 8.2%. The average hours per workweek increased slightly, as did hourly pay. In other words, not much change from the previous month.