August 4, 2012
The Labor and Employment Committee of the National Lawyers Guild [NLG] is a non-profit unincorporated legal association engaged in legal education and advocacy. The membership of the Labor & Employment Committee includes lawyers, law students, legal workers, and worker representatives. It serves as a liaison between the Guild and legal organizations that represent organized labor and workers. The L&EC also works directly with organized labor and other organizations that represent workers.
The United Association for Labor Education (UALE) is a national organization of labor educators working towards progress, growth, and hope for the labor movement. Education is an essential tool of union transformation, developing new leadership and meeting the ever-changing needs of unions and workers.
One item at the UALE site describes grants available to fund research related to workers, unions, and employment policy.
New Book on Reinventing HR
Most businesses see HR departments (as they do law departments) as necessary evils that support the overall business mission. The premise of HR from the Outside In is that HR departments should add value to the business mission itself, for example, by championing innovation and technology throughout the company.
August 3, 2012
Corbin on The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC
Caroline Mala Corbin (University of Miami School of Law) writes to tell us about just posting on SSRN her new essay forthcoming in the Northwestern University Law Review entitled: The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 96 Nw. U. L. Rev. 951 (2012).
Here is the abstract:
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit.
But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.
I am on the same page with Caroline on Hosanna-Tabor (in fact, full disclosure: I signed on the amicus brief at the Supreme Court in support of the disabled plaintiff). The most shocking thing to me about the case is that there was not a single dissent to the majority's decision. In any event, read the whole piece, as Caroline brings a comprehensive and thoughful approach to this doctrinal puzzle.
Eisenstadt on "The N-Word at Work: Contextualizing Language in the Workplace.
Leora F. Eisenstadt (the Abraham L. Freed man Teaching Fellow at Temple University Beasley School of Law) writes to tell us that she has posted her forthcoming article in the Berkeley Journal of Employment and Labor Law on SSRN entitled: "The N-Word at Work: Contextualizing Language in the Workplace."
Here is the abstract:
The N-Word at Work examines the misinterpretation of language in employment discrimination cases. There is a widening gap between the use and meaning of words in modern American culture and courts’ treatment of those words. This is particularly true in the case of derogatory slurs and phrases but is equally true for discriminatory language in general. This article argues for a context-driven theory of linguistic meaning that is compatible with the purposes of Title VII and other anti-discrimination statutes but that would re-inject a sense of reality into the consideration of discriminatory language.
Both the legal literature and judicial system have largely ignored this problem of language in discrimination cases. Perhaps sensing an emerging problem in the lower courts, in its 2006 decision in Ash v. Tyson, the Supreme Court devoted a single, vague sentence to the meaning of language in discrimination cases. Nonetheless, the problem persists among appellate and district courts alike. In late 2010, for example, a federal district court in Philadelphia addressed the issue head-on in a case involving a white employee who was terminated for using “the N-word” and claimed in his reverse-race discrimination case that had he been African American and used the word, he would not have been disciplined. Like its predecessors, the court approached the problem in a formalistic way that resulted in a context-blind approach to language with unsatisfactory results.
This article calls attention to this issue by examining the uses and meanings of discriminatory language in modern culture and advocates a theory of meaning that relies on the context in which it is used, the identity of the user, and the social, historical, and cultural framework in which the language developed. The article highlights the mistreatment of language by trial and appellate courts and tracks the troubling history of Ash, which was finally resolved in December 2011 after two trials, a trip to the Supreme Court and four reviews by the Eleventh Circuit. Finally, the article suggests solutions to this seemingly intractable problem, including the need for (1) robust guidance from the Supreme Court on the purposes of anti-discrimination law and the non-literal applications of that law that make flexible, context-driven considerations of discriminatory language both possible and preferable and (2) extra-legal expert testimony akin to social framework evidence that could translate the cultural realities of language for courts.
Leora also linked to it in a blog post on Concurring Opinions. Looks like a very interesting article. I look forward to reading it, especially its discussion on social frameowork evidence which I have written about preivously along with Melissa Hart (Colorado) in the Wal-Mart v. Dukes context.
Mayor Bloomberg Advocating Violating the NY Taylor Law?
From the New York Magazine, 7-24-12: "Mayor Bloomberg Flirts with Violating the Taylor Law.":
In the wake of the Aurora mass shooting, the New York magazine quotes Bloomberg as saying he does not understand why police across the U.S. do not stand up and collectively say 'We're going to go on strike' to highlight the safety issues for police posed by lax gun laws. New York's Taylor Law plainly states that "no public employee or public employee organization shall cause, instigate, encourage, or condone a strike."
I agree with Harris that it is hard to imagine a public sector union leader not getting into trouble for advocating this same thing.
The linked article includes an interesting discussion of whether Bloomberg may not have violated the Taylor Law because he is an employer (who cannot "authorize, approve, condone or consent" to a strike) and not an employee.
Discuss among yourselves.
Litigation Over Unpaid Internships Under the FLSA Heats Up
Thanks to friend of the blog, David Yamada (Suffolk) for brining to our attention been the emerging litigation over unpaid internships during the past year. Apparently, such litigation is starting to heat up.
For a bit more background on what's been going on with this issue, here's a blog post David wrote back in May on the New Workplace blog (which you should check out generally).
July Employment Data
The Department of Labor just released its July employment data. The numbers are still mediocre, but showed an improvement from the last few months. There were 163,000 jobs added in July (compared to a revised 64,000 in June). But because of growth in the labor market, the unemployment rate went up by a tenth of a point to 8.3%.
July 30, 2012
4th Circuit Limits CFAA in Employment Context
Jon Harkavy (Harkavy & Patterson) sends us word of the recent Fourth Circuit case of WEC v. Miller. Rather than re-inventing the wheel I'll just copy-and-paste the text from Jon's email to me. The take-away is in bold.
[This] Fourth Circuit decision  deprives employers of a civil remedy for damages against their former employees under the federal Computer Fraud and Abuse Act where the employees used the employer's private data for the benefit of their new employers (and to the detriment of the former employer.) Whatever the former employer's remedies may be under state law for misuse of proprietary information, the Fourth Circuit holds that so long as the employees had authorization to use the computer to obtain data, they cannot be liable under the CFAA for using data obtained on a computer they were authorized to use. In so holding, the Fourth Circuit deepens a circuit split that may make this decision cert-worthy. In any event, the court's reluctance to turn an anti-hacking statute with both civil and criminal penalties into an employer weapon against trade secret abuse makes for interesting reading.
Jay Brown (Denver) has counted citations to blogs in cases and law journals. He finds that Workplace Prof Blog is the 20th most-cited blog in law journals. For the complete count, download from SSRN Law Faculty Blogs and Disruptive Innovation: The Data.