August 31, 2012
Rhode Island Outlaws Discrimination Against Homeless
Mitchell Rubinstein writes over at Adjunct Prof Blog that Rhode Island has passed a law outlawing discrimination against the homeless. With Mitch's permission, I'm cross-posting it here:
Rhode Island has enacted a state law which outlaw discrimination against the homeless. Among the important provisions, homeless individuals have the following rights:
- The right not to face discrimination while seeking or maintaining employment due to lack of a permanent mailing address or a mailing address that is a shelter or social service provider.
- The right to use and move freely in public spaces (sidewalks, public parks, public transportation, public buildings) in the same manner as any other person and without discrimination on the basis of housing status.
- The right to emergency medical care free from discrimination based on housing status.
- The right to vote, register to vote and receive documentation necessary to prove identity for voting without discrimination due to housing status.
- The right to protection from disclosure to law enforcement agencies without appropriate legal authority any records or information provided to homeless shelters and service providers and the right to confidentiality of personal records and information in accordance with limitations on disclosure established by the Federal Homeless Management Information Systems, the Federal Health Insurance Portability and Accountability Act and the Federal Violence Against Women Act.
- The right to a reasonable expectation of privacy of personal property to the same extent as personal property in a permanent residence.
- The right to equal treatment by all state and municipal agencies, without discrimination on the basis of housing status.
UK Employment Claims at UCHR
The claims were all dismissed by the UK courts amidst much controversy. As a quick reminder, they are (1) Lillian Ladele who lost her job as a registrar after her employer required her to register civil partnerships (she refused due to her Christian beliefs); (2) Nadia Eweida who was suspended by British Airways for wearing of a crucifix; (3) Shirley Chaplin who lost her job as a nurse after refusing to remove her crucifix when v necked tunics were introduced for staff and (4) Gary McFarlane who was dismissed as a relationship counsellor because his employer believed he would not provide counselling to same sex couples.
No Private Right of Action for Expressing Milk
Mike Maslanka writes over at Work Matters about Salz v. Casey's Marketing Co. (N.D. Iowa), which interpreted a provision of the Patient Protection and Affordable Care Act that requires employers to provide female employees a place other than a bathroom to express milk for their infants. The court dismissed on 12(b)(6) a claim by a a woman that her employer failed to do so. The court held that the law does not provide a private right of action -- enforcement is only through the Department of Labor.
Saving Small Employer Health Insurance
Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order to preserve the availability of premium and cost-sharing subsidies on the individual market for their low-income employees. Third, small employers with unusually low-risk employees will have strong incentives to self-insure any group plan they do offer in order to avoid cross-subsidizing higher-risk groups. Analyzing these risks collectively, this Article offers a number of recommendations for saving the small group market. For instance, it argues that the SHOP exchanges that are intended to organize the small group market in 2014 must strategically target the weaknesses of self-insurance by offering simple and risk-free coverage options that facilitate employee choice. They must also market this coverage aggressively in light of insurance brokers’ likely financial incentives to push self-insurance on small employers. Additionally, state and federal law makers should explore various possibilities for making small employers both more likely to offer group coverage and, if they do offer group coverage, to do so through SHOP exchanges rather than self-insured plans. Possibilities explored by this Article include amending the terms of the premium and small business tax credits, regulating stop-loss insurance, and imposing various restrictions or penalties that are aimed at preventing churning between the self-insured and small group markets.
Jamie Prenkert (Indiana - Business), Julie Magid (Indiana - Business), and Allison Fetter-Harrott (Franklin College) have jsut posted on SSRN their article (forthcoming N.C. L. Rev.) Retaliatory Disclosure: When Identifying the Complainant Is an Adverse Action. Here's an excerpt from the abstract:
Sometimes the possibility of being publicly identified as a complainant will be enough to discourage a person from complaining. That is especially true when being identified as a complainant exposes her to a greater likelihood of reprisal. This paper addresses the circumstances when such publicity can be deemed materially adverse, such that it ought to be sufficient to support a claim of retaliation.
August 30, 2012
Who Needs Tenure?
The Chronicle has a story on yet another development at my university: Faculty Review Proposal at Saint Louis University Would Eviscerate Tenure. The proposed policy would institute a program of post-tenure review for all university faculty which would allow the university to terminate anyone (except administrators, adjuncts, faculty on leave, and faculty in the Medical Group or on our Madrid campus) who does not show "continuing and increasing effectiveness" in teaching, scholarship, and service -- a constant "positive trajectory."
This isn't the first time our president has suggested that faculty tenure or other job security is a bad idea, but it's the most comprehensive push to put that into effect across the university. And given recent and not so recent events, the standard seems all too easily abused to get rid of people with unpopular opinions. We'll have to see what happens.
Facebook Advice; Request for Comments
One of my 1L students has asked me to review his facebook page and suggest items to cull to ensure the page does not offend prospective employers. I’m disinclined to review the student’s Facebook account line-by-line, photo-by-photo, and inclined instead to give some general advice. I’ll take my first shot below the jump, but would welcome comments to this post if you have additional advice to add or if you would advise differently.Here’s the message the student sent me, appropriately enough via Facebook:
This is [ ] from your Civpro class. I hope
you are doing well. I had a favor to ask you but it's really okay if you're too
busy. I was wondering if you could peruse my Facebook and give me pointers
about maybe what I should cull as my class moves forward toward taking the bar
and employment. I know employers and the bar association may look into social
networking and I figured you had a good idea over what they would look for.
If you can't look at my page, or just don't want to (I'd understand that too), do you have any general tips for having a professional fb? Thank you so much and I'll see you in class tomorrow.
Kudos to the student, of course, for recognizing that his Facebook page can affect him professionally. Here’s my attempt at providing general advice. As I said before the jump, please add your thoughts as a comment to this post.
- Never, under any circumstances, post (or allow to be posted) anything on your Facebook page that you would not like to see on the front page of your hometown newspaper or the newspaper in the area where you intend to practice law.
- Decide whether you want your Facebook page to be primarily social or primarily professional.
a. If social, start by password protecting the site to the maximum extent possible. Do not “friend” anyone who is not a close relative or a friend in the pre-Facebook sense of the word. Do not friend any workplace supervisor or anyone up the chain of command from you; be hesitant to friend co-workers even if you have a social relationship outside of work. Notwithstanding all these precautions, do not ever violate Rule #1. Post all the non-embarassing photos of your spouse/children/nieces/nephews/etc. you want. Never say anything negative about any past or present employer.
b. Developing a professional Facebook page can be a very effective marketing tool for junior lawyers. Post on the types of cases you’re working on (omitting, of course, anything that might remotely be considered confidential) and professional experiences (“Going to Frankfort to take a deposition.”). A photo of you with your family will help personalize you, but keep the children/family photos to a bare minimum. Post only photos that look professional -- both in content and in form (no grainy nighttime cell-phone shots). Note your recent accomplishments, but do so with humility. Omit personal information, such as relationship status, from your page. Omit social events/photos, unless they are work-related. Never say anything negative about any past or present employer; go out of your way to praise and market your current employer.
I'll be the first one to admit that although I tend to divide Facebook pages into personal OR professional, for most folks, it's a blend of both. Is keeping a rigid divide a good idea? Is it realistic for folks who literally have grown up with the medium? If blending is either good or inevitable, how can users get the best (and avoid the worst) of both worlds? Comments are welcome.
Secunda "Speechless"; Hell Freezes Over
An ABA Journal article quotes Paul Secunda (Marquette) as "speechless" that Judge Raymond A. Jackson of the Eastern District of Virginia ruled, in Bland v. Robertsy, that a public employee "liking" something or someone on Facebook is not protected First Amendment expression. The article is ‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules.
Secunda & Garcia Quoted in Garcetti Case
[I]t is questionably sound to deny public employees the right to speak about matters of great public concern. "'Government employees are often in the best position to know what ails the agencies for which they work.'" Id. at 429 (Souter, J., dissenting) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). By diminishing the protections available to employee-speakers, Garcetti makes employees “less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste without facing retribution from their public employers.” Paul M. Secunda, Garcetti's Impact on the First Amendment Speech Rights of Federal Employees, 7 First. Amend. L.Rev. 117, 118 (2008).
The majority in Garcetti brushed away concerns about protecting employee whistleblowers by noting that other statutes would protect those employees from retaliation. But as the Garcetti dissent predicted, id. at 439–40, such speech often falls outside the narrow confines of whistleblower statutes. See Ruben J. Garcia, Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory Protection for Public Employees, 7 First. Amend. L.Rev. 22 (2008) (detailing failures of statutory protections for government whistleblowers).
August 29, 2012
Transplanting the Public Policy Tort
It's been a busy year on the public policy front. First, Kentucky recognizes a claim for discharge for possessing a gun on employer property and now Missouri finds a healthcare company in violation of its public policy exception to at-will employment when it discharges an employee for her volunteering to donate her kidney to her brother. Delaney v. Signature Health Care Foundation, 2012 Mo. App. LEXIS 694 (Mo. Ct. App. May 22, 2012). Putting aside the irony of a non-profit medical clinic firing its data clerk for such conduct, the case is interesting because of its take on what public policies count for the tort.
Obviously, the plaintiff was engaged in praiseworthy conduct, but that has not been sufficient in the past for most courts. But Missouri extends the exception to protect employees “acting in a manner [which Missouri public policy] would encourage,” as articulated in Delaney. The Court found the data clerk’s activity to be included since Missouri’s code:
(1) establishes an advisory committee to assist in developing organ donor awareness programs;
(2) requires the motor vehicle commission to ask registrants if they want to be organ donors;
(3) establishes a “Be an Organ Donor” license plate; and
(4) requires state employers to grant thirty-days paid leave for organ donors.
Reminiscent of the Kentucky decision, which also looked to a statute that explicitly provided protection to employees, #4 might well support a public policy claim – but only for public employees. Neverthless, the court found it evinced a broader public policy. In any event, the other three reasons, and the general notion of “encouragement” suggest a relatively easy threshold.
Maybe too easy to get any traction? One of the cases I often use in class to indicate the limits of the tort is a older Kentucky decision not finding going to law school protected. Scroghan v. Kraftco Corp., 551 S.W.2d 811, 812 (Ky. Ct. App. 1977) because it was not a matter “in which the community has a public interest,” and thus “attendance at night school was a private rather than a public concern.”
Surely, however, we could find some basis to conclude that society encouraged going to law school – education loans, tuition subsidies at public universities. Would the Missouri court go that far, or perhaps the life-and-death aspect of Delaney suggests a limitation on the “encouragement” notion.
Of course, in the current legal education environment, maybe law schools wouldn't be so unhappy to see an extension of the tort!
Probably Delaney is less significant in its own right than as another reminder that of the fluidity of public policy in the employment context. Interestingly, the case didn't generate much popular media publicity, for which the employer should be thankful.
August 28, 2012
Recently Published Scholarship: Hofstra LELJ
Volume 29, No. 2 Spring 2012
- Stacy A. Hickox, Drug Testing of Medical Marijuana Users in the Workplace: An Inaccurate Test of Impairment, p. 273.
- César F. Rosado Marzán, Punishment and Work Law Compliance: Lessons from Chile, p. 343.
- Kenneth Glenn Dau-Schmidt, Winston Lin, The Great Recession, the Resulting Budget Shortfalls, the 2010 Elections and the Attack on Public Sector Collective Bargaining in the United States, p. 407.
- Elizabeth Tippett, Robbing a Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, p. 433.
- Blake R. Bertagna, The "Miscellaneous Employee": Exploring the Boundaries of the Fair Labor Standards Act's Administrative Exemption, p. 485.
- Roger B. Jacobs, Fits and Starts for Mandatory Arbitration, p.547.
- Jennifer Spellman & Jeannea Varrichio, Bad Reputation?: The Potential Negative Impact of Outsourcing on the Legal Profession, p. 575.
- Jacob Claveloux & Jon Stockman, Eastern Enterprises as the Canary in the Coalmine: Will the Supreme Court Hamper the Gulf Workforce by Continuing to Confuse the Constitutionality of Retroactive Liability Provisions?, p. 609.
August 27, 2012
Sixth Circuit Upholds NLRB's Pre-Recognition Framework Agreement Ruling
In 2010, the NLRB upheld (2-1) a pre-recognition framework agreement in Dana Corp. The majority concluded that the agreement merely established groundrules for a possible post-recognition relationship, while the dissent argued that the agreement essentially locked in the union without majority support. The Sixth Circuit has just upheld the majority's ruling. The court didn't argue that one view or the other was best, but instead held that the outcome was within the Board's discretion. As someone who has often argued for more judicial deference to the Board (being a former NLRB appellate attorney no doubt plays into that), I applaud this result.
Silence on Salary
American Public Media's Marketplace has had a great series in the last week or so on salaries and people's attitudes about them. Today's interesting story provides data on its own recent survey of people's attitudes toward sharing information about their salaries. Lots of people don't want to share that information even to family, friends, and coworkers, much less outsiders. Other stories include one on how big employers set salaries and how the compensation market works.
This reluctance may be one reason why so many employers forbid employees from talking about their pay and why that doesn't get challenged even though it probably violates the National Labor Relations Act. Personally, I'm in favor of transparency and was very happy when my dean participated in SALT's annual salary survey this year. I wish there was more and wish there was more transparency for more jobs at my own school.
Recently Published Scholarship
- Katie R. Eyer, That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275 (2012).
- Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, 46 Georgia L. Rev. 937 (2012).
- Alan Frank Pryor, Balancing the Scales: Reforming Deorgia's Common Law in Evaluating Restrictive Covenants Ancillary to Employment Contracts, 46 Georgia L. Rev. 1117 (2012).
- Xenia Tashlitsky, A Critique of Supplying the NLRB with Social Science Expertise Through Party/Amicus Briefs, 1 UC Irvine L. Rev. 1257 (2012).
Garden and Leong on So Closely Intertwined: Labor and Racial Solidarity
Charlotte Garden (Seattle) and Nancy Leong (Denver) have just posted on SSRN this new article: So Closely Intertwined: Labor and Racial Solidarity.
Here is the abstract:
Conventional wisdom tells us that labor unions and people of color are adversaries. Commentators, academics, politicians, and employers across a broad range of ideologies view the two groups’ interests as fundamentally opposed and their relationship as rightfully fraught with tension. For example, commentators assert that unions capture a wage premium that mostly benefits white workers while making it harder for workers of color to find work; that unions deprive workers of color of an effective voice in the workplace; and that unions are interested in workers of color only to the extent that they can showcase them to manufacture the appearance of racial diversity.
Like much conventional wisdom, the narrative that unions and people of color are rivals is flawed. In reality, labor unions and civil rights groups work together to advance a wide array of mutual interests; this work ranges from lobbying all levels of government to protesting working conditions across the country. Moreover, unions improve the lives of both members and non-members of color, from bargaining for better wages and working conditions to providing services like job training and continuing education to under-resourced communities.
Accordingly, we aim to replace the conventional wisdom with a narrative that more accurately describes the occasionally complicated but ultimately hopeful relationship between labor and race. In developing this narrative, we anchor our conclusions in an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research. This extensive body of scholarship indicates that union membership has significant benefits for workers of color in the form of higher wages and improved benefits, more racially congenial workplaces, and deeper cross-racial understanding. We complement this robust scholarly literature with real-world examples of union success at improving the well-being of workers and communities of color. In contrast to many other commentators, then, our account is largely optimistic, though we emphasize that there is still work for the labor movement to do.
As the title suggests, this really important and timely article paints a largely optimistic (though occasionally complicated) picture of the relationship between labor unions and workers and communities of color. It also discusses the many narratives to the contrary, and some reasons for their persistence even as many unions have dramatically changed their orientation towards people of color.
As Charlotte and Nancy related to me, this new article builds on their past respective prior work -- Nancy's in Racial Capitalism (forthcoming in the Harvard Law Review), and Charlotte's in Labor Values are First Amendment Values (79 Fordham L. Rev. 2617 (2011)).
I have read both of the previous pieces (which were excellent) and this new article is a very original contribution to one of the most important issues today in labor law: how unions and people of color interact in a constructive way to advance their mutual civil rights agenda. Both groups need and depend on one another.
Needless to say, this is certainly worth a long read. Check it out!