Saturday, September 15, 2012
Very interesting story brought to my attention by friend of the blog, Dennis Nolan. Apparently, according to a story reported by Eugene Volokh at the Volokh Conspiracy blog, the Office of Special Counsel (OSC) concluded that during one speech Health and Human Services (HHS) Secretary Kathleen Sebelius violated proscriptions in the Hatch Act concerning political campaigning in the federal employment sector.
One of the interesting questions is what the penalty should be for such a violation and does the OSC have the ability to enforce any type of penalty, such as a suspension from employment (as the statute requires in some instances for violations), against a high-ranking official in a coordinate branch of the government? The OSC letter itself concludes:
In light of the President’s constitutional authority, Congress has determined that violations of the Hatch Act by such officers be referred to the President “for appropriate action.” See 5 U.S.C. § 1215(b). Accordingly, OSC hereby submits this Report of Prohibited Political Activity, together with a response from Secretary Sebelius, to the President.
It also appears from the OSC report that by Sebelius and her office themselves reclassifying the offending speech as a political one, they may have cured some, or all, of the Hatch Act violation.
I must admit that I really am not familiar enough with this area of federal sector civil service law to hazard a guess of what might happen further, if anything, and would certainly appreciate any insights that readers have in the comments section.
Congratulations to Charlie Sullivan, Recipient of Second Annual Paul Steven Miller Award for Scholarly Contributions to Labor and Employment Law
Last night, during the reception at the Seventh Annual Colloquium on Labor and Employment Law in Chicago, Charlie Sullivan, my co-blogger, friend, and mentor, received the Paul Steven Miller Award for significant contributions to the development of labor and employment law scholarship.
As I said in my remarks last night during the award ceremony (and Mike Zimmer made eloquent remarks as well to his good friend):
The Paul Steven Miller Award is of course about the influence one has had on the development of scholarship in labor and employment law. I would be hard pressed to think of someone (perhaps with the exception of last year's recipient, Mike Zimmer) who has a more profound and lasting effect on the development of employment discrimination law doctrine in the United States (of course, he has also written important pieces in employment law, antitrust law, and contracts law, to name a few other areas). Charlie started to write in this area as early as 1976, and has not let up in the sheer volume and quality of his scholarship in the last 35 and more years. The man is stunningly prolific . . . .
All you need to do is read any employment discrimination law article from any other law professor in the country to know that they have felt Charlie's influence and they, like me, are indebted to him for all that he has done for the development of employment discrimination law.
I know, tonight, that Paul Miller, an eminent Title VII scholar and government official, is looking down on us this evening and smiling that impish grin of his. He's saying: "You could not have picked a better and more deserving person for this honor!"
Friday, September 14, 2012
Update (9/15/12): Here are some thoughts by myself and others in the Milwaukee Journal-Sentinel on how an appeal of the court's Act 10 decision might eventually unfold.
In a stunning turn of events, a state trial court in Dane County, Wisconsin (Madison) has declared null and void the anti-collective bargaining provisions, annual recertification provisions, and anti-dues check off provisions of Act 10 (the Wisconsin anti-collective bargaining law) under federal and state constitutional law. The pension contribution provisions for Milwaukee were also struck down. Here is the court's decision in Madison's Teacher Inc. v. Walker.
More specifically, the court found that Act 10 impermissbly burdened public sector union members' associational rights and free speech rights in collective bargaining and was in violation of equal protection under both federal and state constitutions. Additionally, the Court found that provisions requiring public employees to contribute to their pensions violated the Home Rule Amendment to the Wisconsin Constitution and the Impairment of Contracts Clause of both the Wisconsin and federal constitutions.
This decision will certainly be appealed and faces a frosty reception at the Wisconsin Supreme Court which has sided with Governor Walker on a partisan basis (4-3) in prior challenges to Act 10.
Things are about to get real interesting here in Wisconsin again.
Today marks the start of the two-day 7th Annual Colloquium on Labor and Employment Law. The Colloquium is jointly hosted by Northwestern Law School and Loyola-Chicago Law School. Here's the program description.
Wednesday, September 12, 2012
14 California lifeguards were fired from the city's aquatic center for a parody video they made of the popular 'Gangnam Style' music video.
Several lifeguards in El Monte, CA participated in the video but others were fired just for being in the background while it was shot. The pool manager was also fired even though he doesn't appear in the video.
But the guards claim they did it off the clock, while the pool was closed and no patrons were around.
The lifeguards were at-will, so they don't likely have a legal cause of action. Nonetheless, it's not difficult to imagine how a more enlightened employer might have handled this.
Monday, September 10, 2012
The Seventh Circuit issued an important decision on Friday in EEOC v. United Airlines, No. 11-1774. Through an unusual procedural device, the court overruled prior precedent and held that under the ADA, reassignment of an employee who becomes disabled can be a reasonable accommodation that the employer must provide. The prior case was EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), in which the court had held that the ADA did not require that a vacant position be given to an employee with a disability where a better qualified employee also wanted it because the ADA was only a "nondiscrimination" statute, and not a "mandatory preference" statute. Two years later, the Supreme Court decided US Airways v. Barnett, 535 U.S. 391 (2002), holding that, in fact, sometimes the ADA did require what looked like preferential treatment of employees with disabilities to put them on an even playing field.
In EEOC v. UAL, the court remanded the matter to the district court to apply the two part test that Barnett requires: 1. Is mandatory reassignment, ordinarily, in the run of cases, a reasonable accommodation; and if so, 2. are there fact-specific considerations particular to this employer's employment system that would create an undue hardship and render mandatory reassignment unreasonable? There is an alternative test, too. If the court answers "no" to number 1, then the plaintiff has a chance to prove at step 2 that special factors make mandatory reassignment reasonable in this case. The court also gave some guidance on when mandatory reassignment will not be reasonable, i.e. in a workplace with a bona fide seniority system, something the court called rather rare and which it noted was absent here. The court suggested that it was extremely likely that the district court would find that mandatory reassignment will be reasonable in the run of cases at United Airlines.
With this decision, the 7th Circuit joined the 10th and D.C. Circuits (both of which had issued opinions en banc before Barnett) in holding that mandatory reassignment was required unless it would create an undue hardship for an employer. The 8th Circuit, which had relied on Humiston-Keeling, may want to rethink its position.
h/t Mark Weber (DePaul)
Sunday, September 9, 2012
It's just been announced that negotiations between Chicago teachers and the school board have broken down and the teachers will go on strike on Monday. I'm not up on the details of the negotiations--which seems to have turned sour when the mayor rescinded a previously negotiated raise--but I predict that the union is going to lose the PR battle on this one. Some of the announced raise demands (now 19% in first year the schools' latest offer is 4% increases over the next four years), for instance, is not going to play well in this economy no matter what the details are. Stay tuned.